This practice note relates to existing companies limited by guarantee (CLGs), not having a share capital, that were incorporated by an enactment prior to, and in existence immediately prior to the commencement of, the Companies Act 2014 on 1 June 2015 (‘existing guarantee companies’), but the precedent constitution at section 6.2 may also be used when incorporating a new CLG under the act.

It is aimed primarily at charities, but please note that CLGs are not always charities. Also, guarantee companies that have a share capital are a separate category under the act and are not dealt with in this note.

Do we have to change our memorandum and articles?

No. Existing guarantee companies continue in existence and are automatically deemed to be a CLG under part 18 of the act.

Should we change our memorandum and articles?

The memorandum and articles of association of an existing guarantee company registered before 1 June 2015 shall continue in force. Where this document is inconsistent with a mandatory provision of the act, the act shall prevail. Also, references to prior Companies Acts or the tables of the Companies Act 1963 are to be read as references to the corresponding provision of the act. This may, however, be somewhat confusing and difficult to administer. We recommend updating the memorandum and articles for future ease of reference. It is also good practice to refresh the memorandum and articles, particularly where they have not been recently updated.

Can we retain our ministerial exemption from using the word ‘limited’?

Yes. If the exemption was in force on 1 June 2015, it shall continue to have effect, but it shall be an exemption from the use of the worlds ‘company limited by guarantee’ instead of ‘limited’. The Registrar of Companies now administers the exemption.

How do we prepare a new constitution?

The following is a checklist of actions to be taken.

State in the memorandum:

1. The company’s name in the form [company name] [company limited by guarantee],
2. That the company is a company limited by guarantee registered under part 18 of the Companies Act 2014,
3. The objects for which the company is established,
4. That the liability of the members is limited,
5. That every member of the company undertakes to contribute to the assets of the company if the company is wound up while he or she is a member or is wound up within one year after the date on which he or she ceases to be a member for:
   • The payment of the debts and liabilities of the company contracted before he or she ceases to be a member and the costs, charges, and expenses of winding up, and
   • The adjustment of the rights of contributories among themselves,
   • Such amount as may be required, not exceeding €1.

State in the articles that the following regulations shall apply to the company:

1. The number of members with which the company proposes to be registered,
2. That the provisions of the Companies Act 2014 are adopted] or
3. The new regulations of the company].

The constitution must:

1. Be in a form as near as circumstances permit to that shown in schedule 10 of the act, and
2. Be printed in an entire format – that is, with the memorandum and articles as the one document.

Is there an example document showing these changes?

Please refer to the Document 6.2, draft CLG model constitution for a CLG. This contains useful footnotes that will assist with tailoring the constitution to your clients’ requirements.

What are the basic considerations when drafting a new constitution?

Parts 1-15 of the act relates to the CLG, save to the extent they are varied by part 18 of the act. In the main, the variations in part 18 are with respect to the disapplication of references to shares and share capital, which are not relevant to a CLG.

The act contains 151 optional statutory default positions applicable to the LTD that may be varied or amended. Many of these also apply to the CLG. Fortunately, the optional default provisions were drafted to reflect the standard positions adopted by the majority of companies prior to enactment of the act. These optional provisions may be disapplied or modified, and companies may draft their own bespoke alternative provisions. Where the constitution of a CLG does not modify an optional provision, the provision applies to the CLG.

Is there a requirement for the original subscribers to sign the amended constitution? 

When submitting a new company’s constitution to the CRO, section 19(2)(c) of the act states that a constitution shall either be signed by each subscriber in the presence of at least one witness or be authenticated “in the manner referred to in section 888”. Pursuant to section 888 of the act, a document may be authenticated in the manner prescribed by ministerial regulation (section 12(1) of the act).

With respect to the amended constitution, current practice when submitting an amended constitution to the Companies Registration Office is to include the list of original subscribers, but such subscribers are not required to sign the revised memorandum and articles. It is expected that this practice will continue with respect to the submission of the constitution adopted by members of existing guarantee companies.

The constitution is prepared – what next? 

To adopt the new constitution, the company should take the following steps:

1. At the time of writing, the approval of the Revenue Commissioners is required for amendments to the constitutions of CLGs (or other approved documentation) in order to continue to hold charitable status for tax purposes. Standard clauses have been agreed between the Charities Regulatory Authority and the Revenue Commissioners that must be included in any constitution seeking the charitable tax exemption. Once the Revenue Commissioners have approved the first amendments to such documentation and have received an updated copy, any subsequent approvals will be under the auspices of the Charities Regulatory Authority. The requirements of the Revenue Commissioners with respect to the conditions attached to the granting of the charitable tax exemption must continue to be adhered to.
2. The prior approval of the CRA is required to amendments to the constitution of a CLG with charitable purpose.
3. Once the approval of the relevant regulator(s) has been obtained, in accordance with the requirements of its existing memorandum and articles and the Companies Act 2014, the members of a CLG must pass a special resolution adopting the new constitution.
4. The new constitution, together with Form G1, must be submitted to the Companies Registration Office for registration. Please consult guidance from the Companies Registration Office on the requirements for completion of this form.
5. Finally, the new form constitution must be uploaded to the relevant charity’s CRA account on the CRA website.