Doing Business In... 2019 Comparisons

Last Updated July 15, 2019

Contributed By Matheson

Law and Practice

Authors



Matheson is the law firm of choice for internationally focused companies and financial institutions doing business in and from Ireland. Established in 1825 in Dublin, the firm now employs over 700 people in its offices in Dublin, Cork, London, New York, Palo Alto and San Francisco, including 96 partners and tax principals and over 470 legal and tax professionals. Matheson’s expertise is spread across more than 30 practice groups. Its clients include over half of the world’s 50 largest banks, six of the world’s ten largest asset managers and seven of the top ten global technology brands, and it has advised the majority of the Fortune 100. Matheson’s values of partnership, respect, innovation, diversity and entrepreneurship are important to the firm and guide how it works together and with its clients.

The judicial system in Ireland is established by the Constitution, the principal courts being the District Courts and Circuit Courts (with limited jurisdiction), the High Court (with unlimited jurisdiction in civil and criminal matters), the Court of Appeal (with appellate jurisdiction) and the Supreme Court (which usually exercises final appellate jurisdiction only). The judiciary is independent of the legislature and the executive.

Ireland is a member state of the EU and the United Nations. The Irish legal system is similar in many respects to that of the UK and the USA. Irish law is based upon common law, statute and the Constitution. The EU also represents an important source of Irish law and decisions of the EU Court of Justice exercise significant influence over Irish law.

Foreign investments are not subject to any particular approval requirements and there is no overarching FDI screening framework. Investment, whether foreign or domestic, in certain sectors such as banking, financial services, media and telecommunications may attract regulatory scrutiny. 

Ireland is subject to the new EU FDI Screening Regulation (2019/452/EU) (the 'FDI Regulation') which will apply from October 2020. The FDI Regulation co-ordinates the scrutiny of investments by non-EU countries to ensure that those investments do not threaten security or public order. The focus will be on areas such as critical infrastructure and technologies, food security and free press. Ireland will not be obliged to establish an FDI screening framework but other EU member states and the Commission will be able to request information from, and provide comments or an opinion to, Ireland on investments where security or public order are at stake.

As there are no general requirements under Irish law for foreign investors to obtain investment approval, there are no sanctions or consequences for investing without approval.

Irish authorities impose no specific commitments on foreign investors in relation to their investments.

In general terms, Irish authorities cannot block foreign investment, so there is no need for recourse to the various appeal mechanisms available under Irish law.

The Companies Act 2014 provides for various types of corporate vehicles that may be created in Ireland. A company of any type may be incorporated with a single shareholder.

Company Limited by Shares (LTD)

The LTD is the model form of private company limited by shares and is by far the most common form of corporate vehicle used by foreign investors. The LTD has the same unlimited legal capacity as an individual. It has a one-document constitution and its internal regulations are set out in simplified form in that constitution. It can adopt written procedures instead of holding an annual general meeting of shareholders (AGM). An LTD is prohibited from offering securities (equity or debt) to the public.

Designated Activity Company (DAC)

The DAC is another form of private company recognised in Ireland. A key distinction between a DAC and an LTD is the continued existence of an objects clause in the DAC constitution. A DAC may be a suitable vehicle where an objects clause is needed (eg, to restrict the corporate capacity of a joint-venture vehicle) or for companies listing debt securities on a stock exchange. A DAC must convene an AGM unless it is a single-member company, in which case this requirement can be dispensed with.

Unlimited Company

The Companies Act recognises three distinct types of unlimited company:

  • the private unlimited company with a share capital (ULC);
  • the public unlimited company with a share capital (PUC); and
  • the public unlimited company without a share capital (whose liabilities are guaranteed by its members) (PULC).

ULCs may not offer for sale or list any new securities, as is the case for an LTD, but a PUC and PULC may list debt securities. Unlike the LTD, an unlimited company must hold an AGM unless it is a single-member company, in which case this requirement can be dispensed with. 

Public Limited Company (PLC)

The key distinction between PLCs and private companies is that only PLCs may list their shares on a stock exchange and offer them to the public. A Societas Europaea (SE), the European model company, is regarded as a PLC under the Companies Act. It must have a minimum issued share capital of EUR25,000. There is a general prohibition on the giving of financial assistance by a PLC in connection with the acquisition of shares in itself or its holding company. A PLC cannot dispense with the holding of an AGM.

Guarantee company (CLG)

A CLG does not have a share capital and is a popular type of company for charities, sports and social clubs and property management companies. The members’ liability is limited to such amount as they undertake in the constitution of the company to contribute to the assets of the CLG in the event of its winding up. A CLG has a two-document constitution, consisting of a memorandum and articles of association. An audit exemption is available to CLGs (although any one member can object and can force the company to carry out an audit). A CLG must hold an AGM unless it is a single member company in which case this requirement may be dispensed with.

To incorporate a company in Ireland, certain documents including the company’s constitution must be filed with the Companies Registration Office (CRO). Incorporation papers must contain the company name, registered office, director and secretary details, subscriber details, the company’s principal activity and the place in Ireland where it is proposed to carry on that activity. The incorporation form includes a declaration that the requirements of the Companies Act have been complied with. Under an express incorporation scheme, a company can be incorporated within five working days. Otherwise, it may take two to three weeks to incorporate a company. On incorporation, the CRO will issue the company with a certificate of incorporation. CRO fees are EUR50 for online applications and EUR100 for paper applications.

Generally, Irish companies must present audited financial statements to the AGM and then publicly file a copy with the company's annual return in the CRO (which includes certain disclosures concerning directors’ remuneration). A directors' report on the state of affairs of the company and its subsidiaries must be attached to the balance sheet presented before the AGM. Small and micro companies are subject to fewer public disclosures and more relaxed reporting requirements.

Directors may need to make additional disclosures to the company if, for example, they hold shares representing more than 1% of the company’s share capital. Directors of companies with assets exceeding EUR12.5 million and turnover exceeding EUR25 million are also required to make an additional prescribed form of compliance statement in their directors’ report.

CRO filings must be made in respect of changes in the following:

  • company name;
  • directors or company secretary;
  • registered office; and
  • share capital or the company constitution. 

Details of mortgages or charges made in respect of a company must be also filed with the CRO. 

Most Irish companies must maintain internal registers on individuals considered to be their ultimate beneficial owner. The European Union (Anti-money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 also require, from November 2019, entities to file their beneficial ownership details on a central beneficial ownership register which will be publicly accessible. Where the company has no beneficial owner or the beneficial owner cannot be identified, details of the company’s senior managing officials (directors) must be provided.

Irish companies are managed by a single-tier board of directors. All companies, other than LTDs, must have a minimum of two directors. The secretary may be one of the directors of the company. An LTD may have one director but, in that case, there must be a separate company secretary. A body corporate may act as secretary to another company, but not to itself. A body corporate may not act as a director.

At least one of the directors of an Irish company must be a resident of a member state of the European Economic Area (EEA) unless:

  • the company posts a bond to the value of EUR25,395 which, in the event of a failure by the company to pay a fine imposed in respect of an offence under company law or a penalty under tax legislation, will be used in discharge of the company’s liability; or
  • the company holds a certificate from the CRO confirming that the company has a real and continuous link with one or more economic activities that are being carried on in Ireland.

In general terms, the authority, power and responsibility to manage the business and affairs of a company is entrusted to its directors. This creates a legal relationship between the directors and the company, known as a fiduciary relationship, whereby the directors serve as fiduciaries with respect to the care of the company’s property and interests.

Directors’ common law fiduciary duties were codified in the Companies Act. A director's fiduciary duties under the Companies Act include (but are not limited to) the duty to:

  • act in good faith in what the directors consider to be the interests of the company;
  • act in accordance with the company's constitution and to use his or her powers only for the purposes allowed by law;
  • avoid conflicts of interest between the director's duty to the company and their other interests (including personal interests) unless the director is released from this duty; and
  • exercise the care, skill and diligence which would be exercised in the same circumstances by a reasonable person having both the knowledge and experience that may reasonably be expected of a person in the same position as the director and with the knowledge and experience which the director possesses.

Where a breach of duty by a director is proved, the director may be required to account to the company for any personal gain made from the breach and to indemnify the company for any loss or damage resulting from the breach. 

Generally, parent companies are not liable for the acts of limited liability subsidiaries, but they may be liable under parent company guarantees.

Directors' duties are owed (to varying extents) to the company, the shareholders, the company’s employees, the company’s creditors and any appointing shareholder. Directors may be found criminally liable for certain breaches of the Companies Act and for other offences in areas such as environmental, health and safety and tax law.

Subject to certain limitations in the Companies Act, a company is permitted, however, to indemnify a director in respect of liability incurred in defending proceedings, whether civil or criminal, in which judgment is given in his or her favour or in which he or she is acquitted, or where the High Court, in an application for relief, declares that he or she has acted reasonably and honestly.

Employment protection laws in Ireland apply to all employees working in Ireland, irrespective of the employee’s nationality.

Employment law is primarily governed by:

  • the Constitution of Ireland 1937;
  • Irish statutes and EU law;
  • judicial precedents;
  • common law (including contract law);
  • statutory mechanisms put in place by the state to regulate certain sectors, including Sectoral Employment Orders (SEOs) which require acceptance by the Minister of State at the Department of Business, Enterprise and Innovation following a recommendation from the Labour Court;
  • collective bargaining agreements; and
  • custom and practice in the workplace and workplace or industry rules.

The primary legislation regulating employment relationships include the:

  • Unfair Dismissals Acts 1977 to 2015;
  • Employment Equality Acts 1998 to 2015;
  • Redundancy Payments Acts 1967-2018;
  • National Minimum Wage Act 2000 and the Payment of Wages Act 1991;
  • Terms of Employment (Information) Acts 1994 to 2012;
  • Maternity Protection Acts 1994 to 2004 and other protective leave legislation;
  • Minimum Notice and Terms of Employment Acts 1973 to 2005;
  • Fixed Term Workers, Part Time Employees and Agency Workers Protection Legislation;
  • Organisation of Working Time Act 1997; and
  • European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

Under the Employment (Miscellaneous Provisions) Act 2018, employers must notify employees in writing, within five days of commencement of employment, of the following core terms of employment:

  • the full names of the employer and the employee;
  • the address of the employer;
  • the expected duration of the contract, in the case of a temporary contract, or the end date if the contract is a fixed-term contract;
  • the rate or method of calculation of the employee’s pay; and
  • the number of hours the employer reasonably expects the employee to work per normal working day and per normal working week.

Under the Terms of Employment (Information) Act 1994, all employers are obliged, within two months of commencement of employment, to provide their employees with a written statement setting out certain fundamental terms of their employment such as the date of commencement, place of employment, employer and employee details, job title and a description of the nature of the work, expiry date (if relevant), breakdown of wage calculations, annual leave and sick pay entitlements and notice requirements.

The statement must be signed both by the employee and by the employer. Any change to the statutory particulars must be notified to the employee, in writing, within one month. Any changes or amendments to the employment contract of a material nature can only be implemented, generally speaking, with the agreement of both parties.

An employer may not permit any employee to work for more than an average of 48 hours per week, over a particular reference period (usually four months). This reference period varies depending on the type of employment in question. Working time should only take account of time spent working (ie, it should exclude rest and meal breaks).

Employees cannot opt out of the 48-hour average working week. However, there is a particular exemption for senior or specialist employees, who can be said to determine their own working time, such that they are not subject to the restriction. The contracts of such employees should expressly provide that they are exempt from the 48-hour average working week.

Generally speaking, there is no statutory entitlement to overtime under Irish law, or to payment for overtime. Employees will only be entitled to paid overtime if such an entitlement is contained in their employment contract or has been established by custom and practice in the employment concerned. However, employers that require employees to work on Sundays are required to compensate them for doing so, whether in terms of paying a 'Sunday premium' or specifically taking into account the fact that they may be required to work on a Sunday in calculating rate of pay.

An employer can, at common law, terminate an employment contract without cause, provided this is done in accordance with its terms. Notwithstanding any express contractual right to terminate, employees are afforded statutory protection against unfair or discriminatory dismissal. Under the Unfair Dismissals Acts 1997–2015 (UDA), an employer cannot lawfully dismiss an employee unless substantial grounds exist to justify termination. Also, it is essential for an employer to be able to establish that fair procedures have been followed before making a decision to dismiss. Subject to certain exceptions, employees must have at least 12 months’ continuous service to qualify for protection under the UDA.

Generally, a dismissal will only be justified if it is based on one of the following grounds:

  • the capability, competence or qualifications of the employee for the work concerned;
  • the conduct of the employee;
  • the redundancy of the employee; or
  • the employee being prohibited by law from working or continuing to work (eg, not holding a valid work permit where one is required).

If one of the above cannot be established, there must be some other substantial grounds to justify the dismissal.

Where an employee or an employer wishes to end a contract of employment, minimum periods of notice apply where an employee has been in continuous service for at least 13 weeks. The notice period to be given by an employer depends on the employee's length of service. It varies from one week, applicable where an employee has been employed for up to two years, to eight weeks' notice, applicable where an employee has been employed for 15 years and upwards. Employees, on the other hand, are only obliged to give notice of one week, irrespective of their length of service. There is no requirement to pay an employee severance in the event of a dismissal, unless it arises by reason of redundancy.

The Protection of Employment Acts 1977 to 2015 (PEA) prescribes the procedures to be followed in a collective redundancy. Employers are obliged to initiate consultation at the earliest opportunity, and in any event at least 30 days before the first notice of dismissal is given. Where an employer effects collective redundancies, the employer must, with a view to reaching agreement, initiate consultations with employees’ representatives in relation to matters such as the possibility of avoiding or reducing the proposed redundancies and the basis on which it will be decided which particular employees will be made redundant.

The PEA requires employers to provide employee representatives and the Minister for Employment Affairs and Social Protection with certain written information such as the proposed number of redundancies, the number and description of employees it proposes to make redundant. The Minister must also be notified of the proposals at least 30 days in advance of the first notice of redundancy being given.

The statutory redundancy amount is currently two weeks’ pay for each year of service, plus one extra week’s pay. A week’s pay for these purposes is currently subject to a ceiling of EUR600 a week.

For both ordinary dismissals and collective redundancies, it is commonplace for employers to offer employees an ex-gratia payment upon termination of employment in exchange for the employees signing a compromise agreement that waives all employment law claims against the employer.

The concept of employee representation under Irish law relates to both unionised and non-unionised employees, and is derived from a number of sources, both statutory and otherwise.

Trade Union Representation

Any employee has the right to join a trade union, although trade unions may not legally compel employers to recognise and negotiate with them. The degree to which trade unions may embark upon industrial action is regulated principally by the Industrial Relations Act 1990. Employee representatives are appointed by way of secret ballot.

Information and Consultation Representation

In addition to any local representation arrangements that may exist (whether with trade unions or otherwise), employees may also be entitled to representation in certain circumstances as a matter of statute. This form of representation can arise in transfer of undertakings, collective redundancy situations or where the employees are covered by a local or European-level works council.

The Transnational Information and Consultation of Employees Act 1996 (as amended) (the 1996 Act), requires undertakings with at least 1,000 employees in the EU and 150 or more employees in each of at least two member states to set up European works councils to inform and consult with their employees on a range of management issues relating to transnational developments within the organisation. Under the 1996 Act, a special negotiating body (SNB) is established to negotiate with the employer. The duration and functions of the SNB will be subject to the terms and purpose of the Works Council agreement put in place.

The Employees (Provision of Information and Consultation) Act 2006 obliges employers with at least 50 employees to enter into a written agreement with employees or their elected representatives setting down formal procedures for informing and consulting with them. The legislation will only apply if a prescribed minimum number of employees request it. The legislation is silent on how employee representatives are elected, and it will be up to the employees to determine how this is conducted, but usually it is done by way of secret ballot.

The primary Irish taxes applicable to employees and employers are income tax, PRSI and USC.

Income Tax

Irish tax law generally imposes income tax on an individual where he or she is resident or ordinarily resident in Ireland in the year of assessment or, if not so resident, if the employment is exercised in Ireland in the year of assessment. 

An individual will be considered resident in Ireland in a year of assessment if he or she is present in Ireland for either 183 days in the year of assessment or 280 days in the year of assessment and the preceding year when taken together (provided that the individual has been present for at least 30 days in each of the two years). An individual will ordinarily be tax resident in Ireland if the person has been resident in Ireland for three consecutive years immediately preceding the year of assessment. 

In terms of the applicable income tax rate, different tax rate bands apply depending on an employee’s personal circumstances. The current standard rate of income tax is 20%, which applies to the first EUR35,300 earned by a single person without children and to the first EUR44,300 earned by a married person or a person in a civil partnership. A higher 40% rate is applied to any remaining balance. Generally, the income tax of an employee is deducted at source by the employer and paid to the Collector General through the Pay As You Earn (PAYE) system.

PRSI

Ireland’s equivalent of social insurance or social security is known as PRSI (Pay Related Social Insurance). Subject to certain limited exceptions, anyone employed in Ireland is generally subject to the PRSI system and the payment is generally collected through the PAYE system by the employer. The amount of PRSI paid by an employee depends on the employee’s income and the PRSI class of the employee. The most common PRSI class for private sector employees in Ireland is Class A (employees in industrial, commercial and service type employment with gross earnings of EUR38 or more in a week). A Class A employee’s PRSI contribution will be 4% of all ‘reckonable earnings’ (which includes employee share-based remuneration and any benefit-in-kind). Separately, the employer must also make an employer’s PRSI contribution of 8.7% on weekly earnings up to EUR386 and 10.95% on weekly earnings over EUR386.

USC

Employees in Ireland are also subject to a further tax payable on total income, known as the ‘Universal Social Charge’ (USC). ‘Relevant emoluments’ for USC purposes are, broadly, all PAYE income of the employee before deduction of permanent health insurance and pension contributions. For 2019, USC is only payable where an individual’s aggregate income exceeds EUR13,000. The first EUR12,012 will be taxed at a rate of 0.5%, the following EUR7,862 at 2%, the following EUR50,170 at 4.5% and the remaining balance at 8%.

The taxes applicable to businesses are corporation tax, VAT, capital gains tax, withholding tax and stamp duty.

Corporation Tax

A company that is resident in Ireland for Irish tax purposes will be subject to corporation tax on its worldwide profits (including gains) regardless of where those profits arise. A company that is not tax resident in Ireland is only liable to corporation tax in Ireland if it carries on a trade in Ireland through a branch or agency.

A company will be considered tax resident in Ireland if it is centrally managed and controlled in Ireland regardless of where the company is incorporated. If a company is incorporated in Ireland, the general rule is that the company will be Irish tax resident unless it is tax resident in another country pursuant to the terms of a double tax treaty. Irish companies incorporated before 2015 that are managed and controlled in a country with which Ireland does not have a double tax treaty may be considered tax resident in such country pursuant to transitional measures that apply until 1 January 2021.

The rate of corporation tax payable on a company’s profits will depend on whether the profits arise from trading (broadly, operational activities) or non-trading (eg, passive investment) activities. A rate of 12.5% applies to trading profits of a company whilst a higher 25% rate applies to non-trading income. The question of whether a company is carrying on a trade is primarily one of fact to be decided on a case-by-case basis. Whilst Irish tax legislation does not provide any meaningful definition of what activities amount to a ‘trade’, the Irish Revenue Commissioner’s published guidance broadly indicates that trading presupposes activity and employees with the skill and authority necessary to carry out the activity.

VAT

In line with all EU member states, the supply and receipt of goods and services in Ireland are generally subject to VAT. The standard rate of VAT in Ireland is 23%. Reduced rates ranging from 0% to 13.5% may apply to the supply or receipt of certain specified types of goods and services and full exemptions apply to certain goods or services. Where a business is engaged in an activity where VAT applies to its supplies, it should typically be entitled to recover VAT it incurs on purchases subject to certain exceptions. The obligation to account for VAT on supplies made by a company may arise for either the supplier or the customer depending on the circumstances of the supply, for example whether there is a cross-border element to such supply. Businesses are generally obliged to register for VAT in Ireland. Registered businesses will be required to collect VAT charged but the cost of VAT is usually suffered by the end consumer.

Capital Gains Tax

Chargeable gains realised by an Irish tax resident company or a non-resident company operating in Ireland through a branch or agency on the disposal of a capital asset will be subject to corporation tax. An effective rate of 33% will apply to the gain. Any person that realises a gain on a disposal of certain ‘specified Irish assets’ (eg, Irish real estate) will be subject to capital gains tax at a rate of 33% on that gain. 

Withholding Tax

As a general rule, Ireland requires withholding tax to be applied to dividends, interest and royalties at 20%. However, it is usually the case that exemptions from withholding tax will be available on payments made to persons resident in EU member states or jurisdictions with which Ireland has agreed a double tax treaty.

Stamp Duty

Subject to certain exemptions and reliefs, a charge to Irish stamp duty may arise on certain documents treated as stampable instruments where such documents are either executed in Ireland, related to any property situated in Ireland, or related to any matter or thing 'done or to be done' in Ireland. Irish stamp duty is typically chargeable on transfers of Irish real estate and shares in Irish companies.

There are a number of tax credits and incentives available in Ireland, including research and development tax credits and capital allowances for capital expenditure on certain intellectual property.

Research and Development Tax Credit

Irish tax legislation provides for a tax credit in respect of certain expenditure on research and development activities, buildings and plant and machinery. The credit available is 25% of the allowable expenditure (in addition to the deduction available for the expenditure).

A number of conditions must be satisfied in order for the credit to be available, including a requirement that the research and development seeks to achieve scientific or technological advancement and involve resolution of scientific or technological uncertainty.

Capital Allowances Regime for Capital Expenditure on the Provision Certain Intellectual Property

A special capital allowances (tax depreciation) regime is available for capital expenditure incurred to acquire certain categories of intellectual property that qualify as ‘specified intangible assets’ for the purposes of a company’s trade. Such specified intangible assets include patents, trade marks, brands, copyrights or computer software, amongst other categories of IP. 

Capital allowances on qualifying expenditure may either be claimed in accordance with amortisation charged to the profit and loss account of the company or alternatively, on a straight-line basis over 15 years at the rate of 7% for the first 14 years and 2% in the final year. 

Such capital allowances are available to offset taxable profits earned from the specified intangible assets (subject to an 80% cap).

Tax consolidation is not available under Irish tax law and a company within the charge must prepare and file its own tax return for corporation tax purposes for each assessment period. 

That noted, Irish tax law does have group relief, which permits companies within the same corporate group to surrender losses to other profitable group companies. 

While capital losses may not be surrendered between group companies, assets may be transferred within corporate groups without realising capital gains or losses.

Ireland does not have any specific thin capitalisation rules, but there are a number of circumstances where interest payments may be considered to be non-deductible in calculating the taxable profits of a company. 

For instance, interest paid by a company may be re-characterised as a non-deductible distribution where it is paid in respect of securities that are convertible into shares, where it is dependent on the company’s results or where it represents more than a reasonable commercial rate. 

Ireland has committed to implementing an interest limitation rule under the EU Anti-Tax Avoidance Directive (the ATAD). Under that rule, deductions for interest will be capped at 30% of earnings before interest, depreciation, tax and amortisation (EBITA). Although the rule was originally required to be implemented by 1 January 2019, Ireland is availing itself of a derogation which should permit it to postpone implementation until 1 January 2024. Ireland and the European Commission are in discussions about the availability of the derogation. It may be the case that the interest limitation rule is implemented before 1 January 2024.

The Irish transfer pricing rules apply the arm’s length principle to trading transactions between associated enterprises. In this context, ‘arm’s length’ is to be construed in accordance with OECD guidelines and reference is specifically made to the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations as modified and approved in 2010. The 2017 OECD guidelines are due to form part of Ireland’s transfer pricing law from 1 January 2020. 

Broadly, Ireland’s transfer pricing rules require that if the actual consideration payable or consideration receivable by a trader in a transaction with an associated enterprise is otherwise than arm’s length, then any understatement in the trader’s profit will be reversed such that the full arm’s length profit of the trader will be taxed. 

Ireland’s transfer pricing rules apply to both domestic and cross-border arrangements but currently do not apply to non-trading transactions or to SME’s. That noted, in February 2019 the Irish Department of Finance issued a public consultation on Ireland’s transfer pricing rules and indicated that changes will be made to the existing rules with a likely effective date of 1 January 2020 (indicating that the changes will be implemented by the Finance Act 2019). While the Department of Finance has not made any specific comments on this matter, the Finance Bill 2019 (to be enacted before the end of 2019) is expected to extend the application of Ireland’s transfer pricing rules.

Ireland has strict anti-evasion rules that impose criminal sanctions on those who fraudulently evade tax and on anyone who facilitates such evasion. Anyone found guilty of an offence may be fined (up to EUR126,970) or imprisoned for up to five years. In 2018, 21 convictions for serious tax and duty evasion were secured before the Irish courts. At the end of 2018, 100 cases of serious fraud or evasion were under investigation and 20 cases were in the judicial system.

Ireland has a general anti-avoidance rule that applies in respect of tax avoidance transactions. Broadly, a tax-avoidance transaction in this context is a transaction which gives rise to a tax advantage and the transaction was not undertaken primarily for purposes other than to give rise to a tax advantage. In such cases, Revenue may deny or withdraw the relevant tax advantage. In determining if a transaction is a tax avoidance transaction, regard will be had to

  • the form of the transaction;
  • the substance of the transaction and any other transaction(s) directly or indirectly related to or connected with that transaction; and
  • the final outcome of the transaction and any related transaction.

As such, genuine commercial arrangements undertaken with a view to making profit should not be subject to the general anti-avoidance rule.

Similarly, if a transaction was undertaken to avail of any relief or allowances and does not result in an abuse or misuse of such provision then it will not be regarded as a tax-avoidance transaction.

The Irish Government is of the view that Ireland’s existing general anti-avoidance rule is equally as effective as the equivalent ATAD rules and, as such, does not intend to amend the existing anti-avoidance framework as a result of ATAD.

Finally, Ireland recently introduced an ATAD-compliant exit tax. The exit tax is charged at a rate of 12.5% and applies to unrealised capital gains inherent in assets where:

  • a company migrates its place of residence from Ireland to any other jurisdiction; or
  • assets or a business of an Irish permanent establishment (PE) are allocated from the PE back to its head office or to a PE in another jurisdiction. This limb of the charge only applies in respect of companies that are resident in an EU member state other than Ireland.

The exit charge does not apply to assets that remain within the Irish tax charge. The exit charge may be deferred and, in such circumstances, is payable in six instalments. If the exit charge is unpaid, Revenue may pursue any other Irish resident group company or a director who has a controlling interest in the company that is subject to the charge.

The Irish merger control regime applies to ‘any merger or acquisition’, which is defined by Section 16(1) of the Competition Acts 2002 to 2017 (hereinafter referred to simply as 'the Act'), as amended, as including transactions where:

  • two or more undertakings, previously independent of one another, merge;
  • one or more individuals who already control one or more undertakings, or one or more undertakings, acquire direct or indirect control of the whole or part of one or more other undertakings; or
  • the acquisition of part of an undertaking, although not involving the acquisition of a corporate legal entity, involves the acquisition of assets that constitute a business to which a turnover can be attributed (for the purposes of this paragraph ‘assets’ includes goodwill).

Mergers and acquisitions that meet the turnover thresholds set out in Section 18(1) of the Act are subject to mandatory notification to the Competition and Consumer Protection Commission (CCPC), where, for the most recent financial year:

  • the aggregate turnover within Ireland of the undertakings involved is not less than €60 million; and
  • the turnover within Ireland of each of two or more of the undertakings involved is not less than EUR10 million.

Where these requirements are not met, mergers may still be notified to the CCPC on a voluntary basis under Section 18(3) of the Act. The CCPC can also investigate mergers falling below the turnover thresholds under Section 4 or 5 of the Act (ie, where the CCPC believes either that the merger could have as its object or effect the prevention, restriction or distortion of competition, or involves the creation or strengthening of a dominant position).

Only full-function joint ventures (ie, those which perform, on a lasting basis, all the functions of an autonomous economic entity) constitute a merger for the purposes of the Irish merger control regime. The relevant definition is included in Section 16(4) of the Act. The CCPC is primarily responsible for the enforcement of the Irish merger control regime, adopts an approach mostly consistent with the European Commission in identifying whether joint ventures are subject to Irish merger control law.

Where a joint venture does not qualify as full-function, the CCPC may assess it under Section 4 of the Act, which is based on Article 101 of the Treaty on the Functioning of the European Union. Typically, the CCPC will have regard to the European Commission’s Guidelines on Horizontal Cooperation Agreements and the Guidelines on Vertical Restraints when undertaking such an assessment.

A filing must be submitted to the CCPC prior to the implementation of the merger, and may be made so long as the undertakings involved demonstrate a good-faith intention to conclude an agreement.

A Phase I clearance determination must be issued by the CCPC within 30 working days of the ‘appropriate date’, which means the date on which a full and complete filing by the merging parties is made, unless either the CCPC has used its power to ‘stop and restart the clock’ by issuing a formal requirement for information (RFI), which has the effect of resetting the clock and only restarting it when the RFI is complied with, or when the parties and the CCPC commence negotiating remedies, in which case the Phase I period is extended to 45 working days. The CCPC also issues ‘informal’ requests for information that do not stop and restart the clock.

A Phase II clearance determination must be issued by the CCPC within 120 working days of the appropriate date. If the CCPC issues a formal RFI in the first 30 working days of the Phase II period, this has the effect of stopping and restarting the clock in the same way as at Phase I. If the parties and the CCPC are negotiating remedies, the Phase II period is extended to 135 working days.

A suspensory obligation is included in the Act. Section 19(1) of the Act imposes a prohibition on the merging parties putting a merger that has been notified (both mandatory and voluntary) into effect prior to the issue of a clearance determination.

Under Sections 18(9) and 18(10) of the Act, failure to notify a merger that meets the turnover thresholds is a criminal offence punishable by fines of up to EUR250,000, plus EUR25,000 per day for a continued breach. The CCPC cannot impose administrative fines but must refer the matter to the Director for Public Prosecutions to initiate either summary prosecution or prosecution on indictment.

Anti-competitive agreements and practices are prohibited under Section 4 of the Act, which is based on Article 101 of the Treaty on the Functioning of the European Union (TFEU). Section 4 prohibits agreements, decisions, concerted practices that have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in any part of Ireland. The Act applies to businesses operating in Ireland and international business where an agreement is found to restrict competition in Ireland.

Section 4 sets out a non-exhaustive list of agreements that are prohibited, such as those that:

  • directly or indirectly fix purchase or selling prices or any other trading conditions;
  • limit or control production, markets, technical development or investment;
  • share markets or sources of supply;
  • apply dissimilar conditions to equivalent transactions with other trading partners (thereby placing them at a competitive disadvantage); and
  • make the conclusion of contracts subject to acceptance by other parties of supplementary obligations that have no connection with the subject matter of the contracts.

Section 6 of the Act makes it a criminal offence to enter into or implement an agreement, decision or concerted practiced that is prohibited under Section 4. The CCPC operates a Cartel Immunity Programme with the Director of Public Prosecutions which provides for the possibility of immunity from prosecution for the first company/business to come forward to report a cartel.

Abuse of a dominant position is prohibited by Section 5 the Act and Article 102 TFEU. Section 5 of the Act mirrors Article 102 TFEU, except that Section 5 refers to abuse of a dominant position in trade for any goods or services in any part of Ireland. While the Act refers to trade in goods and services in the state, the provisions of the Act are likely to also apply to international businesses/trade that are/is found to be in a dominant position and where there is an effect on trade in Ireland. 

There is no definition of dominance within the Act. The Irish courts and the CCPC have adopted the definition formulated by the Court of Justice of the European Union (CJEU) in case 27/76, United Brands v Commission [1978] ECR 207: "[a] position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers."

As in the case of cartels, the Act makes abuse of a dominant position a criminal offence that can be prosecuted before the Irish courts and is punishable by financial penalties. The Act also includes specific provision for aggrieved persons and the CCPC to take civil proceedings before the Irish courts seeking remedies for an abuse of a dominant position. The remedies available in civil proceedings include a court declaration, damages, imposing structural measures and an injunction.

Definition

Any inventive product/process is patentable under Irish law if it is:

  • susceptible of industrial application;
  • is new; and
  • involves an inventive step. 

Certain inventions are specifically excluded under Irish law, including a discovery or scientific theory, computer programs and methods of doing business.

Length of Protection

Patent protection lasts for up to 20 years from the date of the application, subject to the payment of renewal fees. Irish law also provides for the extension of full–term patents for pharmaceuticals for human or animal use for up to five years.

Irish law also provides for short-term patents which have a ten-year duration. The test of inventiveness for a short-term patent is lower than for a full-term patent. Short-term patents may be converted to a full-term patent where they meet the requirements for a full-term patent.

Registration

Applications for Irish patents are filed at the Irish Patents Office. The specification forming part of the application must include the title of the invention, the description of the invention and the claim or claims and drawings, if any, referred to in the description. 

It is also possible to file a patent application at the European Patent Office (EPO) under the European Patent Convention (EPC) or at the World Intellectual Property Organisation (WIPO) under the Patent Cooperation Treaty (PCT) and to designate Ireland for patent protection. The EPC and the PCT both facilitate the application for patents in a number of jurisdictions, but these are effectively a bundle of applications to a number of states.

Enforcement and Remedies

Patents in Ireland are enforced through civil claims against infringing parties. A patent owner can prevent direct or indirect use of their invention by third parties in Ireland without their consent.

The courts have a wide range of civil remedies available to them to compensate aggrieved owners. These include a declaration of the validity of a patent and that it has been infringed, damages for infringement, injunctive relief and orders to account for profits; and to seize, destroy and/or hand over infringing goods to the patent holder.

Definition

A trade mark under Irish law is any sign capable of both:

  • being represented graphically; and
  • distinguishing goods or services of one undertaking from those of other undertakings. 

A trade mark may consist of words (including personal names), designs, letters, numerals or the shape of goods or of their packaging.

Unregistered trade marks have a limited protection in Ireland through the law of passing off, in a manner similar to that applying in other common law jurisdictions.

Length of Protection

Registered trade marks (be they national Irish marks, Madrid Protocol marks or EU trade marks) are registered initially for a ten-year period but, uniquely among intellectual property rights, this term can be renewed indefinitely for successive ten-year terms on payment of a renewal fee.

A trade mark registration will only remain valid to the extent that the mark is used by the owner in respect of the goods/services for which it was registered.

Registration

There are three options open to trade mark proprietors carrying on business in Ireland:

An application for an Irish trade mark at the Irish Patents Office

A Patents Office examiner scrutinises the application to ensure that it can be considered a trade mark under Irish law and generally examines the application to see if its use would infringe pre-existing Irish/EU trade marks or otherwise falls within a prohibited form of trade mark. If satisfied with the application, the Irish Patents Office publishes it in the Official Journal. Third parties then have three months within which to oppose the application by filing a Notice of Opposition. If there is no opposition, the application will proceed to registration on payment of the registration fee.

An application for a European Union Trade Mark at the European Union Intellectual Property Office (EUIPO)

EU trade marks are filed with EUIPO and undergo an examination, publication and opposition procedure prior to registration, similar to that described for Irish trade marks above. An EU trade mark is a unitary European-wide property right and protects the trade mark proprietor in all member states of the EU.

An international application designating certain states, including Ireland, under the Madrid Protocol

On request, the Irish Patents Office will forward a trade mark application or registration to the International Bureau of the WIPO in Geneva. The Irish trade mark application or registration serves as a base on which the proprietor may designate the mark for registration in other Madrid Protocol countries, for example, the United Kingdom and the United States. The International Bureau notifies trade mark offices designated in the international filing, which, in turn, decide whether to accept the application for registration in their territory. A Madrid Protocol filing can be a cost-effective and efficient way to obtain trade mark protection in multiple jurisdictions.

Enforcement and Remedies

An infringement will occur where a mark, which is the same or similar to a registered mark, is used in relation to the same or similar goods or services as the registered mark. Where the mark being used by a third party is not identical to the registered trade mark, a proprietor needs to show that there is a likelihood of confusion on the part of the public.

The reliefs available for trade mark infringement include damages, an injunction and orders for an account of profits, or the destruction or delivery up of infringing goods.

An unregistered trade mark can be enforced through the vehicle of ‘passing off.’ To succeed in an action for passing-off, the plaintiff must show that the defendant makes a misrepresentation in the course of trade to prospective customers that is calculated to injure the business or goodwill of the plaintiff and that causes or is likely to cause the plaintiff damage.

Definition

Under Irish law, a 'design' is defined as the appearance of the whole or a part of a product resulting from the features of a product or its ornamentation, including the lines, contours, colour, shape, texture or materials of the product itself or its ornamentation. In order to be a registerable, a design must be ‘new’ and have ‘individual character’.

Unregistered designs are also granted a level of protection under Irish law.

Length of Protection

The total term of protection for designs under Irish law is 25 years, renewable at five-year intervals.

An unregistered design exists for a period of three years from the date the design is first made available to the public within the EU where the disclosure could reasonably have become known to the those in the sector concerned, operating within the EU.

Registration

Designs are registered with the Irish Patent Office. An application for a Registered Community Design is made with the European Union Intellectual Property Office (EUIPO).

Enforcement and Remedies

The reliefs available for industrial design infringement include damages, injunctions and orders for an account of profits.

An unregistered design does not confer a monopoly, unlike a registered design, and infringement can take place only if copying can be established.

Definition

Copyright is an intellectual property right which features mainly in, but is not exclusive to, the cultural, arts and information technology sectors. It is the legal form of protection used by the creators or authors of such works to protect the tangible form of all or part of their individual works. Irish law specifically recognises copyright in computer software as a literary work.

Length of Protection

The duration of copyright protection varies according to the format of the work:

  • For literary, dramatic, musical and artistic works and original databases, copyright protection expires 70 years after the death of the author/creator. 
  • For films, copyright protection expires 70 years after the last to die out of: the director; the author of the screenplay; the author of the dialogue of the film; or the author of the music composed for use in the film. 
  • For sound recordings, copyright protection expires 50 years after the sound recording is made or, if the recording is made available to the public, then 70 years from the date it was made available to the public.
  • Copyright protection for broadcasts ends 50 years after they are first transmitted.
  • Copyright protection for computer-generated works ends 70 years after the date they are first made available to the public.

There are some exceptions under Irish law which reflect instances where the wider public interest, or the interests of particular groups, make it necessary to restrict or limit the rights granted to copyright owners. 

Registration

There are no registration formalities in Ireland for obtaining copyright protection. Copyright arises automatically on the creation of an original work.

Enforcement and Remedies

Copyright in Ireland is enforced by way of both civil and criminal liability. Copyright holders may bring actions for damages, injunctive relief, orders to 'search and seize' and orders for an account of profits. Infringement that may occur include unauthorised copying of works, performing of the works, making works available to the public, and adaptation of the work.

Databases

Irish law provides protection for both original databases and ‘non-original’ databases where substantial investment has been incurred in obtaining, verifying, or presenting the contents of the database. Original databases are those in which the contents constitute the original intellectual content of the author. The protections for databases under Irish law prevent the unlawful extraction or re-utilisation of a substantial part of the database.

Where a copyright work is included in a database, copyright shall continue in that work as well as the separate database protections. 

The protection of databases under Irish law expire 15 years from the end of the calendar year in which the making of the database was completed. However, if there is a substantial change to the contents of the database resulting from successive deletions/alterations/additions, the database could be considered to have undergone a substantial new investment which would mean that it could have the benefit of protection under the Database Right indefinitely.

Trade Secrets

Irish law provides for the protection of trade secrets. Trade secret protection is afforded without registration and can last without limitation in time, generally so long as confidentiality is maintained. In order for something to qualify as a trade secret, it must satisfy three requirements:

  • the information must not generally known or readily accessible;
  • the information must have commercial value because it is secret; and
  • it is subject to reasonable steps, under the circumstances, to keep it secret.

Where a trade secret is unlawfully used, there are a variety of remedies under Irish law including injunctions, corrective measures such as recall or destruction of infringing goods, and damages are available to protect the trade secret owner. A person who contravenes or fails to comply with court orders commits an offence and is liable to a fine and/or imprisonment for up to six months.

Principal Data Protection Laws

The principal data protection legislation in Ireland is Regulation (EU) 2016/679 (the GDPR) as supplemented by the Irish Data Protection Acts 1988 – 2018 (collectively the DPA).

Irish law-specific nuances, as permitted or required under the GDPR, are set out in the DPA. These include (for example) the setting of the so-called digital age of consent, certain narrow derogations from data subject rights and the administrative powers and procedures of the local supervisory authority, the Data Protection Commission.

The GDPR has general application to the processing of personal data in the EU, setting out extensive obligations on controllers and processors, and providing strengthened protections for data subjects. The GDPR carries the potential for large fines of up to 4% of annual turnover or EUR20 million (whichever is higher).

Other Relevant Legislation

Ireland has transposed the ePrivacy Directive via S.I. No 336/2011 - European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (the 'ePrivacy Regulations'). The ePrivacy Regulations deal with data breach reporting obligations for certain telecommunications companies and, more generally, electronic direct-marketing rules. The same implementing legislation addresses the local Irish requirements around cookies and similar technologies.

The GDPR applies to the processing of personal data by controllers and processors established in the EU (regardless of whether the processing itself takes place in the EU). 

The GDPR also applies to controllers and processors not established in the EU where the organisation’s processing activities involve either the offering of goods or services to data subjects in the EU or the monitoring of the behaviour of data subjects in the EU.

The Irish Data Protection Commission (the DPC) is the independent authority responsible for enforcing the GDPR and the DPA in Ireland.

The DPC has investigative powers to examine complaints from individuals in relation to potential infringements of data protection law and can order corrective measures where necessary. It can also conduct investigations on its own initiative. The DPC has extensive investigative and information-gathering powers.

The DPC co-operates with other European supervisory authorities, and will act as the lead supervisory authority in respect of cross-border processing of personal data by organisations which have their main establishments (from a data processing perspective) in Ireland.

Matheson

70 Sir John Rogerson's Quay
Dublin 2
Ireland

+353 1 232 2000

+353 1 232 3333

dublin@matheson.com www.matheson.com
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Matheson is the law firm of choice for internationally focused companies and financial institutions doing business in and from Ireland. Established in 1825 in Dublin, the firm now employs over 700 people in its offices in Dublin, Cork, London, New York, Palo Alto and San Francisco, including 96 partners and tax principals and over 470 legal and tax professionals. Matheson’s expertise is spread across more than 30 practice groups. Its clients include over half of the world’s 50 largest banks, six of the world’s ten largest asset managers and seven of the top ten global technology brands, and it has advised the majority of the Fortune 100. Matheson’s values of partnership, respect, innovation, diversity and entrepreneurship are important to the firm and guide how it works together and with its clients.

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