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The Overseas Companies Regulations 2009

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The Overseas Companies Regulations 2009 List of acts
 Selected UK Acts and Regulations
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Crown Copyright Acknowledged
CONTENTS

Draft Statutory Instruments

2009 No. 0000

Companies

The Overseas Companies Regulations 2009

Made                                                    0000

Coming into force                 1st October 2009

PART 1 INTRODUCTION

1.Citation and commencement

2.Interpretation

PART 2 INITIAL REGISTRATION OF PARTICULARS

3.Application and interpretation of Part

4.Duty to deliver return and documents

5.Particulars to be included in return

6.Particulars of the company

7.Particulars of the establishment

8.Documents to be delivered with the return: copy of company’s constitution

9.Documents to be delivered with the return: copies of accounting documents

10.Statement as to future manner of compliance with accounting requirements

11.Penalty for non-compliance

PART 3 ALTERATION IN REGISTERED PARTICULARS

12.Application of Part

13.Return of alteration in registered particulars

14.Return of alteration in company’s constitution

15.Return of alteration as regards filing of certified copy of constitution

16.Return of alteration of manner of compliance with accounting requirements

17.Penalty for non-compliance

PART 4 USUAL RESIDENTIAL ADDRESSES: PROTECTION FROM DISCLOSURE

18.Application and interpretation of Part

19.Protected information

20.Protected information: restriction on use or disclosure by company

21.Protected information: restriction on use or disclosure by registrar

22.Permitted use of protected information by the registrar: communication

23.Permitted disclosure by the registrar: disclosure to specified public authority

24.Permitted disclosure by the registrar: disclosure to credit reference agency

25.Application to prevent disclosure to credit reference agency

26.Disclosure under court order

27.Circumstances in which registrar may put address on the public record

28.Putting the address on the public record

29.Penalty for non-compliance

PART 5 DELIVERY OF ACCOUNTING DOCUMENTS: GENERAL

CHAPTER 1 Introductory provisions

30.Application of Part

CHAPTER 2 Companies required to prepare and disclose accounts under parent law

31.Application and interpretation of Chapter

32.Duty to file copies of accounting documents disclosed under parent law

33.Statement of details of parent law and other information

34.Period allowed for filing copies of accounting documents

35.Penalty for non-compliance

CHAPTER 3 Companies not required to prepare and disclose accounts under parent law

36.Application of Chapter

37.A company’s financial year

38.Duty to prepare accounts

39.Approval and signing of accounts

40.Duty to file accounts

41.Penalty for non-compliance

42.Supplementary provisions

PART 6 DELIVERY OF ACCOUNTING DOCUMENTS: CREDIT OR FINANCIAL INSTITUTIONS

CHAPTER 1 Introductory provisions

43.Application and interpretation of Part

CHAPTER 2 Institutions required to prepare accounts under parent law

44.Application and interpretation of Chapter

45.Initial filing of copies of accounting documents

46.Filing of copies of subsequent accounting documents

47.Statement of details of parent law and other information

48.Supplementary provisions as to obligation to file copies of accounting documents

49.Exception where documents available for inspection

50.Penalty for non-compliance

CHAPTER 3 Institutions not required to prepare accounts under parent law

51.Application of Chapter

52.An institution’s financial year

53.Duty to prepare accounts

54.Approval and signing of accounts

55.Duty to file accounts

56.Penalty for non-compliance

57.Supplementary provisions

PART 7 TRADING DISCLOSURES

58.Application and interpretation of Part

59.Legibility of displays and disclosures

60.Requirement to display name etc at business location

61.Manner of display of name etc

62.Company’s name to appear on communications

63.Particulars to appear in business letters, order forms and websites

64.Disclosure of names of directors

65.Disclosures relating to address for service

66.Civil consequences of failure to make a required disclosure

67.Penalty for non-compliance

PART 8 RETURNS IN CASE OF WINDING UP ETC

68.Application of Part

69.Return in case of winding up

70.Returns to be made by liquidator

71.Return in case of insolvency proceedings etc (other than winding up)

72.Penalties for non-compliance

73.Notice of appointment of judicial factor

74.Offence of failure to give notice

PART 9 MISCELLANEOUS PROVISIONS

75.Service of documents on director, secretary or permanent representative

76.Documents subject to Directive disclosure requirements

77.Duty to give notice of closure of UK establishment

PART 10 SUPPLEMENTARY PROVISIONS

78.Documents that may be drawn up and delivered in a language other than English

79.Revocations

80.Transitional provisions and savings

Signature

SCHEDULE 1 SPECIFIED PUBLIC AUTHORITIES

SCHEDULE 2 CONDITIONS FOR PERMITTED DISCLOSURE

SCHEDULE 3 APPLICATION TO PREVENT DISCLOSURE OF ADDRESS TO CREDIT REFERENCE AGENCY

SCHEDULE 4 OVERSEAS COMPANIES INDIVIDUAL ACCOUNTS

SCHEDULE 5 OVERSEAS COMPANIES GROUP ACCOUNTS

SCHEDULE 6 CREDIT AND FINANCIAL INSTITUTIONS INDIVIDUAL ACCOUNTS

SCHEDULE 7 CREDIT AND FINANCIAL INSTITUTIONS GROUP ACCOUNTS

SCHEDULE 8 TRANSITIONAL PROVISIONS AND SAVINGS

Explanatory Note

 

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 1046(1), (2) and (4) to (6), 1047(1), 1049(1) to (3), 1050(3) to (5), 1051(1) to (3), 1053(2) to (5), 1054(1) and (2), 1055, 1056, 1058(1) to (3), 1078(5), 1105(1) and (2), 1140(2), 1292 (1) and (4), and 1294 of the Companies Act 2006(1).

In accordance with sections 1046(8), 1051(5), 1053(6), 1290, 1292(4) and 1294(6) of that Act, a draft of this instrument was laid before Parliament and approved by each House of Parliament.

PART 1

INTRODUCTION

Citation and commencement

1.—(1) These Regulations may be cited as the Overseas Companies Regulations 2009.

(2) These Regulations come into force on 1st October 2009.

Interpretation

2.  In these Regulations—

“accounting documents”—

(a)in relation to an overseas company to which Chapter 2 of Part 5 applies (companies required to prepare and disclose accounts under parent law), has the meaning given by regulation 31(2), and

(b)in relation to a credit or financial institution to which Chapter 2 of Part 6 applies (institutions required to prepare accounts under parent law), has the meaning given by regulation 44(2);

“certified copy” means a copy certified as a correct copy;

“constitution”, in relation to an overseas company, means the charter, statutes, memorandum and articles of association or other instrument constituting or defining the company’s constitution;

“credit or financial institution” means a credit or financial institution to which section 1050 of the Companies Act 2006 applies;

“disclosure”, in relation to a credit or financial institution to which Chapter 2 of Part 6 applies, has the meaning given by regulation 44(2);

“establishment” means—

(a)a branch within the meaning of the Eleventh Company Law Directive (89/666/EEC)(1), or

(b)a place of business that is not such a branch,

and “UK establishment” means an establishment in the United Kingdom;

“financial period”—

(a)in relation to an overseas company to which Chapter 2 of Part 5 applies (companies required to prepare and disclose accounts under parent law), has the meaning given by regulation 31(2), and

(b)in relation to a credit or financial institution to which Chapter 2 of Part 6 applies (institutions required to prepare accounts under parent law), has the meaning given by regulation 44(2);

“First Company Law Directive” means the First Council Directive on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (68/151/EEC)(2);

“former name”, in the case of an individual, means a name by which the individual was formerly known for business purposes;

“name”, in the case of an individual, means the person’s Christian name (or other forename) and surname, except that in the case of—

(a)a peer, or

(b)an individual usually known by a title,

the title may be stated instead of the individual’s Christian name (or other forename) and surname or in addition to either or both of them; and

“parent law”—

(a)in relation to an overseas company to which Chapter 2 of Part 5 applies (companies required to prepare and disclose accounts under parent law), has the meaning given by regulation 31(2), and

(b)in relation to a credit or financial institution to which Chapter 2 of Part 6 applies (institutions required to prepare accounts under parent law), has the meaning given by regulation 44(2).

PART 2

INITIAL REGISTRATION OF PARTICULARS

Application and interpretation of Part

3.—(1) This Part applies to an overseas company that opens a UK establishment.

(2) In this Part—

“director” includes shadow director; and

“secretary” includes any person occupying the position of secretary by whatever name called.

Duty to deliver return and documents

4.—(1) The company must within one month of having opened a UK establishment—

(a)deliver to the registrar a return complying with the requirements of this Part, and

(b)deliver with the return the documents required by this Part.

(2) These requirements apply each time a company opens an establishment in the United Kingdom.

Particulars to be included in return

5.—(1) The return must contain—

(a)the particulars specified in regulation 6 (particulars of the company), and

(b)the particulars specified in regulation 7 (particulars of the establishment).

(2) If at the time the return is delivered the company—

(a)has another UK establishment,

(b)has delivered a return in respect of that establishment containing the particulars specified in regulation 6, and

(c)has no outstanding obligation under Part 3 in respect of an alteration to those particulars,

the company may instead state in the return that those particulars are included in the particulars delivered in respect of another UK establishment (giving the registered number of that establishment).

Particulars of the company

6.—(1) The particulars of the company to be included in the return are—

(a)the company’s name,

(b)the company’s legal form,

(c)if it is registered in the country of its incorporation, the identity of the register in which it is registered and the number with which it is so registered,

(d)a list of its directors and secretary, containing—

(i)with respect to each director, the particulars specified in paragraph (3), and

(ii)with respect to the secretary (or where there are joint secretaries, with respect to each of them) the particulars specified in paragraph (4),

(e)the extent of the powers of the directors or secretary to represent the company in dealings with third parties and in legal proceedings, together with a statement as to whether they may act alone or must act jointly and, if jointly, the name of any other person concerned, and

(f)whether the company is a credit or financial institution.

(2) In the case of a company that is not incorporated in an EEA State, the particulars of the company to be included in the return must also include—

(a)the law under which the company is incorporated,

(b)in the case of a company to which Chapter 2 of Part 5 or Chapter 2 of Part 6 applies (requirement to prepare and disclose accounts under parent law), the period for which the company is required by its parent law to prepare accounts, together with the period allowed for the preparation and public disclosure (if any) of accounts for such a period,

(c)unless disclosed by the company’s constitution (see regulation 8)—

(i)the address of its principal place of business in its country of incorporation or, if applicable, its registered office,

(ii)its objects, and

(iii)the amount of its issued share capital.

(3) The particulars referred to in paragraph (1)(d)(i) (directors) are—

(a)in the case of an individual—

(i)name,

(ii)any former name,

(iii)a service address,

(iv)usual residential address,

(v)the country or state in which the individual is usually resident,

(vi)nationality,

(vii)business occupation (if any), and

(viii)date of birth;

(b)in the case of a body corporate, or a firm that is a legal person under the law by which it is governed—

(i)corporate or firm name,

(ii)registered or principal office,

(iii)in the case of an EEA company to which the First Company Law Directive applies, particulars of—

(aa)the register in which the company file mentioned in Article 3 of that Directive is kept (including details of the relevant state), and

(bb)the registration number in that register,

(iv)in any other case, particulars of—

(aa)the legal form of the company or firm and the law by which it is governed, and

(bb)if applicable, the register in which it is entered (including details of the state) and its registration number in that register.

(4) The particulars referred to in paragraph (1)(d)(ii) (secretary) are—

(a)in the case of an individual—

(i)name,

(ii)any former name, and

(iii)a service address;

(b)in the case of a body corporate, or a firm that is a legal person under the law by which it is governed—

(i)corporate or firm name,

(ii)registered or principal office,

(iii)in the case of an EEA company to which the First Company Law Directive applies, particulars of—

(aa)the register in which the company file mentioned in Article 3 of that Directive is kept (including details of the relevant state), and

(bb)the registration number in that register,

(iv)in any other case, particulars of—

(aa)the legal form of the company or firm and the law by which it is governed, and

(bb)if applicable, the register in which it is entered (including details of the state) and its registration number in that register.

But if all the partners in a firm are joint secretaries of the company it is sufficient to state the particulars that would be required if the firm were a legal person and the firm had been appointed secretary.

(5) For the purposes of paragraphs (3)(a)(ii) and (4)(a)(ii), where a person is or was formerly known by more than one former name, each of them must be stated.

(6) It is not necessary to include in the return particulars of a former name in the following cases—

(a)in the case of a peer or an individual normally known by a title, where the name is one by which the person was known previous to the adoption of or succession to the title,

(b)in the case of any person, where the former name—

(i)was changed or disused before the person attained the age of 16 years, or

(ii)has been changed or disused for 20 years or more.

(7) For the purposes of paragraph (3)(a)(iv) if the person’s usual residential address is the same as the person’s service address the return need only contain a statement to that effect.

Particulars of the establishment

7.—(1) The particulars of the establishment to be included in the return are—

(a)address of the establishment,

(b)date on which it was opened,

(c)business carried on at it,

(d)name of the establishment if different from the name of the company,

(e)name and service address of every person resident in the United Kingdom authorised to accept service of documents on behalf of the company in respect of the establishment, or a statement that there is no such person,

(f)a list of every person authorised to represent the company as a permanent representative of the company in respect of the establishment, containing the following particulars with respect to each such person—

(i)name,

(ii)any former name,

(iii)service address, and

(iv)usual residential address,

(g)extent of the authority of any person falling within sub-paragraph (f), including whether that person is authorised to act alone or jointly, and

(h)if a person falling within sub-paragraph (f) is not authorised to act alone, the name of any person with whom they are authorised to act.

(2) For the purpose of paragraph (1)(f)(iv) if the person’s usual residential address is the same as the person’s service address the return need only contain a statement to that effect.

Documents to be delivered with the return: copy of company’s constitution

8.—(1) A certified copy of the company’s constitution must be delivered to the registrar with the return.

(2) If at the time the return is delivered the company—

(a)has another UK establishment,

(b)has delivered a certified copy of the company’s constitution with a return relating to that establishment, and

(c)has no outstanding obligation under Part 3 in respect of an alteration to its constitution,

the company may instead state in the return that a certified copy of the company’s constitution has been delivered in respect of another UK establishment (giving the registered number of that establishment).

Documents to be delivered with the return: copies of accounting documents

9.—(1) If the company is one to which Chapter 2 of Part 5 applies (companies required to prepare and disclose accounts under parent law), copies of the company’s latest accounting documents must be delivered to the registrar with the return.

(2) The company’s latest accounting documents means the accounting documents, prepared for a financial period of the company, last disclosed in accordance with its parent law before the end of the period allowed for delivery of the return or, if earlier, the date on which the company delivers the return.

(3) If at the time the return is delivered the company—

(a)has another UK establishment, and

(b)has delivered the documents required by paragraph (1) in connection with a return relating to that establishment,

the company may instead state in the return that the documents are included in the material delivered in respect of another UK establishment (giving the registered number of that establishment).

Statement as to future manner of compliance with accounting requirements

10.—(1) If the company is one to which Part 5 applies (delivery of accounting documents: general), the return must state—

(a)in the case of a company to which Chapter 2 of that Part applies (companies required to file copies of accounting documents disclosed under parent law), whether it is intended to file copies of accounting documents in accordance with the provisions of that Chapter in respect of the establishment to which the return relates or in respect of another UK establishment;

(b)in the case of a company to which Chapter 3 of that Part applies (companies required to file accounts under UK law), whether it is intended to file accounts in accordance with the provisions of that Chapter in respect of the establishment to which the return relates or in respect of another UK establishment.

(2) If the return states that it is intended to file copies of accounting documents, or accounts, in respect of another UK establishment, it must give the registered number of that establishment.

Penalty for non-compliance

11.—(1) If a company fails to comply with any of the requirements of this Part, an offence is committed by—

(a)the company, and

(b)every officer or agent of the company who knowingly and wilfully authorises or permits the default.

(2) A person guilty of an offence under paragraph (1) is liable on summary conviction to—

(a)a fine not exceeding level 3 on the standard scale, and

(b)for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.

PART 3

ALTERATION IN REGISTERED PARTICULARS

Application of Part

12.  This Part applies to an overseas company that—

(a)has complied with Part 2 (initial registration of particulars) in respect of one or more UK establishments, and

(b)has not subsequently given notice under regulation 77 (notice of closure of UK establishment) in respect of all those establishments.

Return of alteration in registered particulars

13.—(1) If an alteration is made in any of the particulars delivered under—

(a)regulation 6 (particulars of the company), or

(b)regulation 7 (particulars of the establishment),

the company must deliver to the registrar a return containing details of the alteration.

(2) Where a company has more than one UK establishment a return is required in respect of each UK establishment to which the alteration relates; but a return giving the registered numbers of more than one UK establishment is treated as a return in respect of each of them.

(3) An alteration in any of the particulars specified in regulation 6 (particulars of the company) is treated as relating to every UK establishment of the company.

(4) The details required of the alteration are—

(a)the particular that has been altered,

(b)details of the particular as altered, and

(c)the date on which the alteration was made.

(5) The return must also state—

(a)the company’s name,

(b)the company’s registered number, and

(c)the name (if different from the company’s name) and registered number of each UK establishment to which the return relates.

(6) The period allowed for delivery of the return is—

(a)in the case of an alteration of any of the particulars specified in regulation 6 (particulars of the company), 21 days after the date on which notice of the alteration in question could have been received in the United Kingdom in due course of post (if despatched with due diligence);

(b)in the case of an alteration of any of the particulars specified in regulation 7 (particulars of the establishment), 21 days after the alteration is made.

Return of alteration in company’s constitution

14.—(1) If any alteration is made in the company’s constitution the company must deliver to the registrar a return stating—

(a)that an alteration has been made to the company’s constitution, and

(b)the date on which the alteration was made.

(2) The return must be accompanied by a certified copy of the constitution as altered.

(3) Where a company has more than one UK establishment a return is required in respect of each UK establishment to which the alteration relates; but a return giving the registered numbers of more than one UK establishment is treated as a return in respect of each of them.

(4) An alteration in the company’s constitution is treated as relating to a UK establishment only if a copy of the constitution is included in the material registered in respect of that establishment.

(5) The return must also state—

(a)the company’s name,

(b)the company’s registered number, and

(c)the name (if different from the company’s name) and registered number of each UK establishment to which the return relates.

(6) The period allowed for delivery of the return is 21 days after the date on which notice of the alteration in question could have been received in the United Kingdom in due course of post (if despatched with due diligence).

Return of alteration as regards filing of certified copy of constitution

15.—(1) This regulation applies where—

(a)the company’s return under Part 2 in respect of an establishment states that a certified copy of the company’s constitution has been delivered in respect of another UK establishment, and

(b)that statement ceases to be true.

(2) The company must deliver to the registrar a further return in respect of the first-mentioned establishment—

(a)stating that the previous statement has ceased to be true, and

(b)either—

(i)accompanied by a certified copy of the company’s constitution, or

(ii)stating that a copy of the company’s constitution is included in the material delivered in respect of another UK establishment (giving the registered number of that establishment).

(3) Where the company has more than one UK establishment a return giving the registered numbers of more than one UK establishment is treated as a return in respect of each of them.

(4) The return must also state—

(a)the company’s name,

(b)the company’s registered number, and

(c)the name (if different from the company’s name) and registered number of each UK establishment to which the return relates.

(5) The period allowed for delivery of the return is 21 days after the date on which notice of the fact that the statement in the earlier return has ceased to be true could have been received in the United Kingdom in due course of post (if despatched with due diligence).

(6) Where, after a company has made a return under this regulation, the statement mentioned in paragraph (2)(b)(ii) ceases to be true, paragraphs (2) to (5) (and this paragraph) apply again.

Return of alteration of manner of compliance with accounting requirements

16.—(1) This regulation applies where—

(a)the company’s return under Part 2 in respect of a UK establishment states an intention as to whether accounting documents, or accounts, are to be filed in accordance with the provisions of that Part in respect of that establishment or in respect of another UK establishment, and

(b)that intention changes.

(2) The company must deliver to the registrar a further return in respect of the first-mentioned establishment stating—

(a)that the intention has changed, and

(b)either—

(i)that it is intended to file accounting documents, or accounts, in respect of the establishment to which the return relates, or

(ii)that it is intended to file accounting documents, or accounts, in respect of another UK establishment (giving the registered number of that establishment).

(3) Where the company has more than one UK establishment a return giving the registered numbers of more than one UK establishment is treated as a return in respect of each of them.

(4) The return must also state—

(a)the company’s name,

(b)the company’s registered number, and

(c)the name (if different from the company’s name) and registered number of each UK establishment to which the return relates.

(5) The period allowed for delivery of the return is 21 days after the date on which notice of the fact that the intention stated in the earlier return has changed could have been received in the United Kingdom in due course of post (if despatched with due diligence).

(6) Where, after a company has made a return under this regulation, the intention stated in accordance with paragraph (2)(b)(i) or (ii) changes again, paragraphs (2) to (5) (and this paragraph) apply again.

Penalty for non-compliance

17.—(1) If a company fails to comply with any of the requirements of this Part within the period allowed, an offence is committed by—

(a)the company, and

(b)every officer or agent of the company who knowingly and wilfully authorises or permits the default.

(2) A person guilty of an offence under paragraph (1) is liable on summary conviction to—

(a) a fine not exceeding level 3 on the standard scale, and

(b) for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.

 
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