The primary purpose of company law is to facilitate continuity and encourage entrepreneurial activity. It does so by providing for separate legal personality and limited liability, thereby circumscribing personal exposure to financial risk. In return for these privileges, company law sets down a framework within which:
- company directors are expected to operate;
- certain transparency requirements must be complied with;
- certain protections are afforded to shareholders, creditors and the wider public; and
- sanctions, both civil and criminal, are provided for in respect of certain non-compliance.
Our mandate, conferred by the Oireachtas, is to encourage adherence to company law and to take appropriate enforcement action in response to non-compliance. Our vision, based on our statutory mandate, is for:
An enforcement agency, that is trusted by the public and highly regarded by our stakeholders and counterparts, whose work contributes to public protection
and to Ireland being regarded as a safe and well-regulated economy in which to invest and create employment.
Details of the strategy by which we intend to realise our vision can be obtained in our Statement of Strategy 2022-2025. Our strategy has been informed by a number of key considerations, including:
- the purpose of company law is not to prevent, insure against or punish failure;
- the law does however demand that, in return for the privilege of limited liability, those availing of it act in good faith and abide by certain minimum requirements of governance, transparency and commercial probity;
- most company directors make best endeavours to comply with their obligations;
- companies are governed and managed by individuals and, as such, in the event of non-compliance, individual accountability is important;
- our finite resources are most effectively deployed in seeking to address indications of wrongdoing at the more serious end of the spectrum.
We encourage adherence to the law through a range of strategies, including the provision of independent information and guidance and through various outreach and stakeholder engagement activities. Our enforcement remit is both civil and criminal in nature and, to enable us to discharge that role, we have an extensive suite of investigative powers at our disposal including:
- the power to require the production of documents (including electronic documents) by companies and relevant third parties;
- powers of search and seizure;
- the power of arrest (i.e., by CEA officers who are seconded members of An Garda Síochána); and
- the right to request the Courts to approve/trigger certain additional investigative measures.
In discharging our enforcement mandate, we supervise the corporate insolvency process and conduct financial and related investigations across the full spectrum of companies, from SMEs and not-for-profits to companies whose securities are publicly listed.
Where our investigative activities identify non-compliance with company law, our enforcement options include civil remedies, such as directing companies and their officers to take certain corrective measures, the restriction and disqualification of company officers and criminal options, including prosecuting in the CEA’s name or referring a matter to the Director of Public Prosecutions (DPP) for consideration as to whether charges should be preferred on indictment. Because more serious breaches of company law tend not to occur in isolation, when we submit files to the DPP, we regularly make recommendations based on the available evidence for other criminal charges (e.g., theft, money laundering etc.).
Investigation and enforcement are, by their nature, adversarial processes, with the CEA being entitled to exercise its powers and those under investigation and affected third parties equally being entitled to assert their legal rights. As such, while it is our preference, for a variety of reasons including cost and efficiency, to avoid litigation, that is not always possible – be that due to statutory obligations, operational considerations or the disposition of a relevant party.
Companies are legal entities whose activities are directed and managed by individuals. For that reason, and in the interests of individual accountability, our enforcement actions are typically directed against individuals as opposed to against corporate entities.
We seek to deploy our available resources in a manner most likely to maximise our impact and the dissuasive effect of our enforcement actions. In determining where to deploy our resources we, therefore, have regard to considerations including:
- the scale and gravity of the issues involved;
- the wider potential impact of the apparent/alleged misconduct;
- whether a complainant, where there is one, has other remedies at their disposal;
- the probability of achieving a positive outcome; and
- public interest considerations.
Based on the knowledge and experience gained through the discharge of our functions, we seek to influence in relevant fora and to engage in thought leadership on matters germane to our statutory remit.