Circuit Court
Office Notice
Examinership of Companies
Regulation (EU) 2015/848 on insolvency proceedings (recast) (OJ L 141/19 of 5 June 2015), with the exception of certain of its provisions referred to in Article 92, came into effect on 26 June 2017. Regulation (EU) 2015/848 may be accessed at:
Regulation (EU) 2015/848 repeals Regulation (EC) 1346/2000 on insolvency proceedings. However, by virtue of Article 91 of Regulation (EU) 2015/848 references to the repealed Regulation (EC) No 1346/2000 shall be construed as references to Regulation (EU) 2015/848 and shall be read in accordance with the correlation table set out in Annex D to Regulation (EU) 2015/848.
Article 84 of Regulation (EU) 2015/848 provides that Regulation (EU) 2015/848 shall apply only to insolvency proceedings opened after 26 June 2017. Acts committed by a debtor before that date shall continue to be governed by the law, including Regulation 1346/2000, which was applicable to them at the time they were committed. Notwithstanding Article 91, Regulation (EC) No 1346/2000 continues to apply to insolvency proceedings within the scope of that Regulation and which were opened before 26 June 2017.
Commission Implementing Regulation (EU) 2017/1105 of 12 June 2017 (“the Implementing Regulation”) prescribes certain forms referred to in Regulation (EU) 2015/848 of the European Parliament and of the Council on insolvency proceedings, in particular (insofar as proceedings under the Personal Insolvency Act 2012 are concerned):
standard notice form to be used to inform known foreign creditors of the opening of insolvency proceedings referred to in Article 54(3) of Regulation (EU) 2015/848 - see Annex I to the Implementing Regulation;
standard claims form which may be used by foreign creditors for the lodgement of claims, referred to in Article 55(1) of Regulation (EU) 2015/848 - see Annex II to the Implementing Regulation;
standard form which may be used by insolvency practitioners appointed in respect of group members for the lodgement of objections in group coordination proceedings referred to in the second subparagraph of Article 64(2) - see Annex III to the Implementing Regulation;
standard form to be used for the electronic submission of individual requests for information via the European e-Justice Portal referred to in the first subparagraph of Article 27(4) of Regulation (EU) 2015/848 - see Annex IV to the Implementing Regulation.
Commission Implementing Regulation (EU) 2017/1105 may be accessed at:
Pending the entry into force of rules of court giving further effect to Regulation (EU) 2015/848 and without prejudice to reliance on Article 91 of Regulation (EU) 2015/848, the modifications set out below to Form 53A in the Schedule to the Circuit Court Rules have been identified as required in light of the requirements of Regulation (EU) 2015/848.
The attention of practitioners is drawn to the requirement in Article 38(1) of Regulation (EU) No 2015/848, that a court seised of a request to open secondary insolvency proceedings shall immediately give notice to the insolvency practitioner or the debtor in possession in the main insolvency proceedings and give them an opportunity to be heard on the request. Accordingly, where a petition is for the opening of secondary insolvency proceedings, the petition should also be served on such persons.
This notice does not purport to offer and should not be relied on as legal advice. Any person wishing to take advice on the effect of Regulation (EU) 2015/848 should consult a solicitor.
FORM 53A
O. 53A, r. 3(1)
Record No.
AN CHÚIRT CHUARDA
THE CIRCUIT COURT
CIRCUIT COUNTY OF
IN THE MATTER OF SECTION 509 OF THE COMPANIES ACT 2014 AND IN THE MATTER OF [INSERT NAME OF COMPANY]
*On the application of [INSERT NAME OF COMPANY], Applicant
*Between/ A.B. Applicant
and
[INSERT NAME OF COMPANY]
Respondent
ORIGINATING NOTICE OF MOTION
STATEMENT OF FACTS
1 The applicant, ..... of ...... , is (state in accordance with section 510(1) of the Companies Act 2014 whether the applicant(s) is/are, as regards the company in respect of which the application is made, (a) the company; (b) a director(s); (c) a creditor, or contingent or prospective creditor (including an employee); (d) a member(s) holding at the date of the presentation of the application not less than one-tenth of such of the paid-up capital as carries at that date the right of voting at general meetings of the company; or (e) in a case in which section 510(2), (3) or (4) of the Companies Act 2014 applies, the Central Bank of Ireland).
2 The Company was incorporated in the State under the Companies Act 2014 (or as the case may be) with registered number.... on the .... day of .... 19/20.....
3 The registered office of the Company is at ..... in the County of ..... The principal place of business of the Company is at ..... *(where the principal place of business is situated in the State) in the County of ......
4 The nominal share capital of the Company is € ....., divided into ...... shares of € ..... each. The amount of the capital paid up or credited as paid up is € ......
*5. The objects for which the Company was established are: to ..... and other objects set forth in the constitution thereof.
6. The directors of the Company are .... and ......
[Note 1] *7. Regulation (EU) No 2015/848 applies to the proceedings. The centre of main interests (determined in accordance with Regulation (EU) No 2015/848) of the Company is situated in the State because [state facts and grounds relied on].
[Note 1] *7. Regulation (EU) No 2015/848 applies to the proceedings. The centre of main interests of the Company is situated within the territory of a Member State of the European Union (other than the State) in which Regulation (EU) No 2015/848 applies, namely at ...... in ...... because [state facts and grounds relied on] and the Company has an establishment within the State at ...... because [state facts and grounds relied on].
[Note 1] [Note 2] *7. Regulation (EU) No 2015/848 does not apply to the proceedings, because [specify reasons for non-application].
[Note 3] *8. To the applicant’s knowledge, no insolvency proceedings have been opened in respect of the Company in a Member State of the European Union in which Regulation (EU) No 2015/848 applies.
[Note 3] *8. Insolvency proceedings, which are
*main insolvency proceedings, (in accordance with Article 3(1) of Regulation (EU) No 2015/848)
*secondary proceedings, (in accordance with Articles 3(2) and 3(3) of Regulation (EU) No 2015/848)
*territorial proceedings, (in accordance with Articles 3(2) and 3(4) of Regulation (EU) No 2015/848)
have been opened in respect of the Company in a Member State of the European Union (other than the State) to which Regulation (EU) No 2015/848 applies, namely in ...... , by judgment opening insolvency proceedings of ...... made on .... 20....
*The applicant *...... of ..... was appointed by the said judgment opening insolvency proceedings to be insolvency practitioner (within the meaning of Article 2(5) of Regulation (EU) No 2015/848) in those insolvency proceedings concerning the company.
[Note 4] *9. In the applicant’s belief, the centre of the company’s main interests is situated within the territory of a Member State other than the State, and main proceedings have not been opened in another Member State. The condition referred to in *[Article 3(4)(a)] *[Article 3(4)(b)] of Regulation (EU) No 2015/848 is met because [state facts and grounds relied on].
[Note 5] *10. All necessary inquiries having been made by the applicant, the company has no obligations in relation to a bank asset (within the meaning of the National Asset Management Agency Act 2009) that has been transferred to the National Asset Management Agency or a NAMA group entity (within the meaning of the last-mentioned Act).
[Note 5] *10. The company has *an obligation in relation to a bank asset (within the meaning of the National Asset Management Agency Act 2009) that has been transferred to the National Asset Management Agency or a NAMA group entity (within the meaning of the last-mentioned Act) and this notice of motion will be served on the National Asset Management Agency.
11. The Company is *unable/*unlikely to be able to pay its debts. The appointment of an Examiner to the Company is desirable because [set out reasons].
12. In respect of
*the latest financial year of the Company that has ended prior to the date of presentation of this originating Notice of Motion
*the financial year of the Company that preceded its latest financial year ending prior to the date of presentation of this originating Notice of Motion
the Company fell to be treated as a small company by virtue of section 350 of the Companies Act 2014 because [set out the relevant conditions, as specified in section 350 which are met in the case of the company the subject of the originating Notice of Motion].
13. The *Company/*applicant has approached [Name of proposed Examiner] of [Firm] and he has agreed to act as Examiner *(and Interim Examiner) of the Company, if so appointed by this Honourable Court.
14. The *Company/*applicant believes that there is a reasonable prospect for the survival of the Company and the whole or any part of its undertaking as a going concern.
15. No resolution subsists for the winding-up of the Company.
16. No order has been made for the winding-up of the Company.
[Note 6] *17. On the ...... day of ...... 20 .... the Company passed a resolution directing the board of the Company to take the necessary steps on behalf of the Company to seek the protection of the Court and the appointment of an Examiner. The said resolution was passed in the following circumstances [Set out circumstances, including details of the Company’s financial difficulties. There should also be included (or exhibited and verified in the verifying affidavit) a statement of the assets and liabilities of the Company (in so far as they are known) as they stand on a date not earlier than seven days before the presentation of the originating Notice of Motion. and as relied on in the report of the independent expert. Set out also particulars of the independent expert’s report, which should, unless an application is being made for an order under section 513 of the Companies Act 2014, be exhibited to the grounding affidavit].
[Note 6] *17. The application to seek the appointment of an Examiner to the Company arises in the following circumstances [Set out circumstances, including details of the Company’s financial difficulties and its creditors].
RELIEFS SOUGHT
TAKE NOTICE that on the .... day of ...... 20 .... at ...... in the forenoon or the first available opportunity thereafter, application will be made on behalf of the applicant in the above entitled proceedings to this Honourable Court sitting at ...... for the following reliefs:
1. An order pursuant to section 509 of the Companies Act 2014 appointing [Name] as Examiner of [INSERT NAME OF COMPANY] (hereinafter the “Company”)
*[Note 7] in main insolvency proceedings, (in accordance with Article 3(1) of Regulation (EU) No 2015/848)
*[Note 8] in secondary proceedings, (in accordance with Articles 3(2) and 3(3) of Regulation (EU) No 2015/848)
*[Note 9] in territorial proceedings, (in accordance with Articles 3(2) and 3(4) of Regulation (EU) No 2015/848).
2. Such directions as may appear appropriate to this Honourable Court in the circumstances.
3. Such further relief as may appear appropriate to this Honourable Court in the circumstances.
4. An order providing for the costs of and incidental to the proceedings on this application.
*NOTE:—It is intended to serve this originating Notice of Motion on (here insert the name of the Company. This note is unnecessary if the Company is itself the applicant). Note also that under Article 38(1) of Regulation (EU) No 2015/848, a court seised of a request to open secondary insolvency proceedings shall immediately give notice to the insolvency practitioner or the debtor in possession in the main insolvency proceedings and give it an opportunity to be heard on the request and accordingly where the petition is for the opening of secondary insolvency proceedings, the petition must also be served on such person.
Dated this .... day of ...... 20 ....
Signed: Applicant /Solicitors for the Applicant
To: The County Registrar
*and to: Respondent /Solicitors for the Respondent
[Notes] (need not be included in document presented)
[Note 1] One alternative version only of paragraph 7 must be included. Under Regulation (EU) No 2015/848—
the “centre of main interests” shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties;
“establishment” means any place of operations where a debtor carries out or has carried out in the 3-month period prior to the request to open main insolvency proceedings a non-transitory economic activity with human means and assets.
[Note 2] Where this version of paragraph 7 is appropriate to the case, paragraph 8 should be deleted.
[Note 3] Where paragraph 8 is required, only one alternative version must be included.
[Note 4] To be used only if Regulation (EU) No 2015/848 applies, insolvency proceedings in respect of the company have not been opened in another Member State, and one of the conditions in Article 3(4) of that Regulation is satisfied.
[Note 5] See section 509(5) of the Companies Act 2014. One alternative version only of paragraph 10 must be included. Where the originating notice of motion is served on NAMA, proof of service must be produced on the hearing of the motion.
[Note 6] One alternative version only of paragraph 17 must be included.
[Note 7] To be used only if Regulation (EU) No 2015/848 applies and the company’s centre of main interests is situated in the State.
[Note 8] To be used only if Regulation (EU) No 2015/848 applies, insolvency proceedings in respect of the company have been opened in another Member State, and the company has an establishment in the State.
[Note 9] To be used only if Regulation (EU) No 2015/848 applies, insolvency proceedings in respect of the company have not been opened in another Member State, and one of the conditions in Article 3(4) of that Regulation is satisfied.
*Delete where inapplicable.
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