Office of Public Sector Information
SCHEDULE 1 continued
““unregistered company” means a company that is not registered under the Companies Act 2006.”.
(5) In subsection (3) of that section (persons qualified to act as insolvency practitioner), for “Northern Irish joint stock company” substitute “Northern Ireland company”.
(6) For subsection (8) of that section substitute—
“(8) In this section “Northern Ireland company” means a company registered under the Companies Act 2006 in Northern Ireland.”.
(7) In section 196(1) (general interpretation of the Act), in the definition of “subsidiary and wholly-owned subsidiary”, for “section 736 of the Companies Act 1985” substitute “section 1159 of the Companies Act 2006”.
(8) In Schedule 6 (nuclear transfer schemes: structure etc of transferee companies)—
(a) in paragraph 1(3) (interpretation of Schedule: meaning of “company”) for “has the same meaning as in the Companies Act 1985” substitute “means a company as defined in section 1(1) of the Companies Act 2006”;
(b) in paragraph 2(4)(c) (treatment of securities as fully paid up) for “the Companies Act 1985” substitute “the Companies Act 2006”;
(c) in paragraph 6(8) (distributable reserves of transferee companies: interpretation)—
(i) in the definition of “called-up share capital” for “section 737 of the Companies Act 1985” substitute “section 547 of that Act”;
(ii) in the definition of “net assets” for “the Companies Act 2006” substitute “that Act”;
(d) in paragraph 7 (dividends)—
(i) in sub-paragraph (2) after “Sections 836 to 840” insert “of the Companies Act 2006”;
(ii) in sub-paragraph (5) in the definition of “distribution” for “Part 8 of the 1985 Act” substitute “Part 23 of the Companies Act 2006 (see section 829 of that Act)”.
(9) In Schedule 7 (finances and accounts of transferee companies), in paragraph 1(7), for “has the same meaning as in the Companies Act 1985” substitute “means a company as defined in section 1(1) of the Companies Act 2006”.
(10) In Schedule 8 (pensions), in paragraph 1(7), for “has the same meaning as in the Companies Act 1985” substitute “means a company as defined in section 1(1) of the Companies Act 2006”.
(11) In Schedule 20 (conduct of energy administration)—
(a) in paragraph 1(2) for “an unregistered company” substitute “a non-GB company”;
(b) in the heading to Part 3 for “unregistered companies” substitute “non-GB companies”;
(c) in paragraph 33(1) for “an unregistered company” substitute “a non-GB company”;
(d) in paragraph 35—
(i) in the opening words, for “an unregistered company” substitute “a non-GB company”;
(ii) in sub-paragraph (b), for “by virtue of section 691(1) or 718 of the Companies Act 1985” substitute “by regulations under section 1043 or 1046 of the Companies Act 2006 (unregistered UK companies or overseas companies)”;
(iii) in sub-paragraph (c), omit “if the company is a non-GB company”;
(e) in paragraphs 36(1), 37(1), 38, 39 and 40 omit “in the case of a non-GB company”.
221.—(1) Part 1 of the Horserace Betting and Olympic Lottery Act 2004 (sale of the Tote) is amended as follows.
(2) In section 2(2)(b)(i) of (transfer of assets: successor company), for “the Companies Act 1985” substitute “the Companies Act 2006”.
(3) In section 5(3)(b) (issue of shares etc to government) for “the Companies Act 1985” substitute “the Companies Act 2006”.
222.—(1) In section 16 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (grants to bodies concerned with accounting standards), subsection (5) (definitions) is amended as follows.
(2) In the definition of “company”, for “within the meaning of the Companies Act 1985 or the 1986 Order” substitute “as defined in section 1(1) of the Companies Act 2006”.
(3) In the definition of “subsidiary”, for “section 736 of the Companies Act 1985 or Article 4 of the 1986 Order” substitute “section 1159 of the Companies Act 2006”.
(4) Omit the definition of “the 1986 Order”.
223.—(1) Section 32 of that Act (memorandum and articles of community interest companies) is amended as follows.
(2) In the section heading, for “Memorandum and articles” substitute “Articles of association”.
(3) In subsection (1), for “memorandum” substitute “articles”.
(4) Omit subsection (2).
(5) In subsection (3), for “memorandum and articles” in both places where it occurs substitute “articles”.
(6) In subsection (4), for “memorandum or articles” substitute “articles”.
(7) In subsection (5)—
(a) in the opening words, for “memorandum and articles” substitute “articles”;
(b) in paragraph (a), for “memorandum or articles” substitute “articles”.
(8) In subsection (6), for “under section 4 of the 1985 Act or Article 15 of the 1986 Order to alter its memorandum with respect to the statement of its objects” substitute “to amend its articles so as to add, remove or alter a statement of the company’s objects”.
224.—(1) Section 33 of that Act (names) is amended as follows.
(2) In subsections (2) and (4)—
(a) for “But the name of such a company may (instead)” substitute “In the case of a Welsh company, its name may instead”;
(b) omit the words from “if the memorandum of the company” to the end.
(3) Omit subsection (5).
225. In section 35(3) of that Act (community interest test), for “memorandum” substitute “articles”.
226. For section 36 of that Act (new companies) substitute—
36.—(1) If a company is to be formed as a community interest company, the documents delivered to the registrar of companies under section 9 of the Companies Act 2006 (registration documents) must be accompanied by the prescribed formation documents.
(2) The “prescribed formation documents” means such declarations or statements as are required by regulations to accompany the application, in such form as may be approved in accordance with the regulations.
(3) On receiving the documents delivered under that section and the prescribed formation documents, the registrar must (instead of registering the documents)—
(a) forward a copy of each of the documents to the Regulator, and
(b) retain the documents pending the Regulator’s decision.
36A.—(1) The Regulator must decide whether the company is eligible to be formed as a community interest company.
(2) A company is eligible to be formed as a community interest company if—
(a) its articles comply with the requirements imposed by and by virtue of section 32,
(b) its proposed name complies with section 33, and
(c) the Regulator, having regard to the application and accompanying documents and any other relevant considerations, considers that the company—
(i) will satisfy the community interest test, and
(ii) is not an excluded company.
(3) The Regulator must give notice of the decision to the registrar of companies (but the registrar is not required to record it).
36B.—(1) If the Regulator decides that the company is eligible to be formed as a community interest company, the registrar of companies must—
(a) proceed in accordance with sections 14 and 15 of the Companies Act 2006 (registration and issue of certificate of incorporation), and
(b) if the company is entered on the register, retain and record the prescribed formation documents.
(2) The certificate of incorporation must state that the company is a community interest company and is conclusive evidence that the company is a community interest company.
(3) If the Regulator decides that the company is not eligible to be formed as a community interest company, any subscriber to the memorandum of association may appeal to the Appeal Officer against the decision.”.
227.—(1) For section 37 of that Act (existing companies: requirements) substitute—
37.—(1) If a company is to become a community interest company—
(a) the company must by special resolution—
(i) state that it is to be a community interest company,
(ii) make such alterations of its articles as it considers necessary to comply with requirements imposed by and by virtue of section 32 or otherwise appropriate in connection with becoming a community interest company, and
(iii) change its name to comply with section 33;
(b) the conditions specified below must be met; and
(c) an application must be delivered to the registrar of companies in accordance with section 37C together with the other documents required by that section.
(2) The conditions referred to in subsection (1)(b) are that—
(a) where no application under section 37A for cancellation of the special resolutions has been made—
(i) having regard to the number of members who consented to or voted in favour of the resolutions, no such application may be made, or
(ii) the period within which such an application could be made has expired, or
(b) where such an application has been made—
(i) the application has been withdrawn, or
(ii) an order has been made confirming the resolutions and a copy of that order has been delivered to the registrar.
(3) Section 30 of the Companies Act 2006 (copies of resolutions to be forwarded to the registrar) applies to the special resolutions as follows—
(a) that section is complied with by forwarding copies of the resolutions together with the application in accordance with section 37C,
(b) copies of the resolutions must not be so forwarded before the relevant date, and
(c) subsection (1) of that section has effect in relation to the resolutions as if it referred to 15 days after the relevant date.
(4) The relevant date is—
(a) if an application is made under section 37A for cancellation of the special resolutions—
(i) the date on which the court determines the application (or if there is more than one application, the date on which the last to be determined by the court is determined), or
(ii) such later date as the court may order;
(b) if there is no such application—
(i) if having regard to the number of members who consented to or voted in favour of the resolutions, no such application may be made, the date on which the resolutions were passed or made (or, if the resolutions were passed or made on different days, the date on which the last of them was passed or made);
(ii) in any other case, the end of the period for making such an application.
37A.—(1) Where special resolutions have been passed with a view to the company becoming a community interest company, an application to the court for the cancellation of the resolutions may be made—
(a) by the holders of not less in the aggregate than 15% in nominal value of the company’s issued share capital or any class of the company’s issued share capital (disregarding any shares held by the company as treasury shares);
(b) if the company is not limited by shares, by not less than 15% of its members; or
(c) by the holders of not less than 15% of the company’s debentures entitling the holders to object to an alteration of its objects;
but not by a person who has consented to or voted in favour of the resolutions.
(2) The application—
(a) must be made within 28 days after the date on which the resolutions are passed or made (or, if the resolutions are passed or made on different days, the date on which the last of them is passed or made), and
(b) may be made on behalf of the persons entitled to make it by such one or more of their number as they may appoint for the purpose.
(3) On the hearing of the application the court shall make an order either cancelling or confirming the resolutions.
(4) The court may—
(a) make that order on such terms and conditions as it thinks fit,
(b) if it thinks fit adjourn the proceedings in order that an arrangement may be made to the satisfaction of the court for the purchase of the interests of dissentient members, and
(c) give such directions, and make such orders, as it thinks expedient for facilitating or carrying into effect any such arrangement.
(5) The court’s order may, if the court thinks fit—
(a) provide for the purchase by the company of the shares of any of its members and for the reduction accordingly of the company’s capital; and
(b) make such alteration in the company’s articles as may be required in consequence of that provision.
(6) The court’s order may, if the court thinks fit, require the company not to make any, or any specified, amendments to its articles without the leave of the court.
37B.—(1) On making an application under section 37A (application to court to cancel resolutions) the applicants, or the person making the application on their behalf, must immediately give notice to the registrar of companies.
This is without prejudice to any provision of rules of court as to service of notice of the application.
(2) On being served with notice of any such application, the company must immediately give notice to the registrar.
(3) Within 15 days of the making of the court’s order on the application, or such longer period as the court may at any time direct, the company must deliver to the registrar a copy of the order.
(4) If a company fails to comply with subsection (2) or (3) an offence is committed by—
(a) the company, and
(b) every officer of the company who is in default.
(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.
37C.—(1) An application to become a community interest company must be accompanied by—
(a) a copy of the special resolutions,
(b) a copy of the company’s articles as proposed to be amended, and
(c) the prescribed conversion documents.
(2) The “prescribed conversion documents” means such declarations or statements as are required by regulations to accompany the application, in such form as may be approved in accordance with the regulations.
(3) On receiving an application to become a community interest company together with the other documents required to accompany it, the registrar of companies must (instead of recording the documents and entering a new name on the register)—
(a) forward a copy of each of the documents to the Regulator, and
(b) retain the documents pending the Regulator’s decision.”.
(2) For section 38 of that Act (existing companies: decisions etc) substitute—
38.—(1) The Regulator must decide whether the company is eligible to become a community interest company.
(2) A company is eligible to become a community interest company if—
(a) its articles as proposed to be amended comply with the requirements imposed by and by virtue of section 32,
(b) its proposed name complies with section 33, and
(c) the Regulator, having regard to the application and accompanying documents and any other relevant considerations, considers that the company—
(i) will satisfy the community interest test, and
(ii) is not an excluded company.
(3) The Regulator must give notice of the decision to the registrar of companies (but the registrar is not required to record it).
38A.—(1) If the Regulator gives notice of a decision that the company is eligible to become a community interest company, the registrar of companies must—
(a) proceed in accordance with section 80 of the Companies Act 2006 (change of name: registration and issue of new certificate of incorporation), and
(b) if the registrar enters the new name of the company on the register, retain and record the documents mentioned in section 37C(3).
(2) The new certificate of incorporation must state—
(a) that it is issued on the company’s conversion to a community interest company,
(b) the date on which it is issued, and
(c) that the company is a community interest company.
(3) On the issue of the certificate—
(a) the company by virtue of the issue of the certificate becomes a community interest company, and
(b) the changes in the company’s name and articles take effect.
(4) The certificate is conclusive evidence that the company is a community interest company.
(5) If the Regulator decides that the company is not eligible to become a community interest company, the company may appeal to the Appeal Officer against the decision.”.
228.—(1) Section 39 of that Act (existing companies: English charities) is amended as follows.
(2) For the heading substitute “Becoming a community interest company: English charities”.
(3) In subsection (1) for “by special resolution change its name to comply with section 33” substitute “become a community interest company”.
(4) In subsection (2) for “section 28(6) of the 1985 Act” substitute “section 38A”.
229.—(1) Section 40 of that Act (existing companies: Scottish charities) is amended as follows.
(2) For the heading substitute “Becoming a community interest company: Scottish charities”.
(3) In subsection (4) for “by special resolution change its name to comply with section 33” substitute “become a community interest company”.
(4) In subsection (5) for “section 28(6) of the 1985 Act” substitute “section 38A”.
230.—(1) Section 40A of that Act (existing companies: Northern Ireland charities) is amended as follows.
(2) For the heading substitute “Becoming a community interest company: Northern Ireland charities”.
(3) In subsection (2)—
(a) for “by special resolution to change its name to comply with section 33” substitute “to become a community interest company”;
(b) for “Article 38(6) of the 1986 Order” substitute “section 38A”.
231.—(1) Section 45 of that Act (appointment of director by Regulator) is amended as follows.
(2) In subsection (3)(b), for “memorandum or articles” substitute “articles”.
(3) In subsection (8), for “section 288(2) of the 1985 Act or Article 296(2) of the 1986 Order” substitute “section 167(1)(a) of the Companies Act 2006”.
(4) In subsection (9), for “section 288(2) or Article 296(2)” substitute “section 167(1)(a)”.
(5) For subsections (11) and (12) substitute—
“(11) If default is made in complying with subsection (10) an offence is committed by—
(a) the company, and
(b) every officer of the company who is in default.
For this purpose a shadow director is treated as an officer of the company.
(12) A person guilty of an offence under subsection (11) is liable on summary conviction to a fine not exceeding level 5 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 5 on the standard scale.”.
232. In section 46(12) of that Act (removal of director by Regulator: exclusion of company’s obligation to notify changes), for “section 288(2) of the 1985 Act or Article 296(2) of the 1986 Order” substitute “section 167(1)(a) of the Companies Act 2006”.
233. In section 49(4)(b) of that Act (transfer of shares), for “memorandum or articles” substitute “articles”.
234.—(1) Section 51 of that Act (dissolution and striking off of community interest companies) is amended as follows.
(2) For subsections (1) and (2) substitute—
“(1) If a community interest company has been—
(a) dissolved, or
(b) struck off the register under section 1000 or 1001 of the Companies Act 2006,
the Regulator may apply to the court under section 1029 of that Act for an order restoring the company’s name to the register.”.
(3) In subsection (3)—
(a) for “section 652A of the 1985 Act or Article 603A of the 1986 Order (application to strike name of private company off register)” substitute “section 1003 of the Companies Act 2006 (striking off on application by company)”;
(b) for “section 652B(6) of the 1985 Act or Article 603B(6) of the 1986 Order” substitute “section 1006 of the Companies Act 2006”.
235.—(1) Section 52 of that Act (re-registration) is amended as follows.
(2) In subsection (1) (re-registration of limited company as unlimited), for “section 49 of the 1985 Act or section 59 of the 1986 Order” substitute “section 102 of the Companies Act 2006”.
(3) In subsection (2) (re-registration of private company as public or vice versa)—
(a) for “section 43 of the 1985 Act or Article 53 of the 1986 Order” substitute “section 90 of the Companies Act 2006”;
(b) for “section 53 of the 1985 Act or Article 63 of the 1986 Order” substitute “section 97 of the Companies Act 2006”;
(c) for “section 47(1)(b) or 55(1)(b) of the 1985 Act or Article 57(1)(b) or 65(1)(b) of the 1986 Order” substitute “section 96(2) or 101(2) of the Companies Act 2006”.
236. In section 53 (ceasing to be a community interest company), in paragraph (a) for “sections 54 and 55” substitute “sections 54 to 55A”.
237.—(1) For section 54 of that Act (community interest company becoming a charity) substitute—
54.—(1) If a company is to cease to be a community interest company and become a charity—
(a) the company must by special resolution—
(i) state that it is to cease to be a community interest company,
(ii) make such alterations of its articles as it considers appropriate, and
(iii) change its name so that it does not comply with section 33;
(b) the conditions specified below must be met; and
(c) an application must be delivered to the registrar of companies in accordance with section 54C together with the other documents required by that section.
(2) The conditions referred to in subsection (1)(b) are that—
(a) where no application under section 54A for cancellation of the special resolutions has been made—
(i) having regard to the number of members who consented to or voted in favour of the resolutions, no such application may be made, or
(ii) the period within which such an application could be made has expired, or
(b) where such an application has been made—
(i) the application has been withdrawn, or
(ii) an order has been made confirming the resolutions and a copy of that order has been delivered to the registrar.
(3) Section 30 of the Companies Act 2006 (copies of resolutions to be forwarded to the registrar) applies to the special resolutions as follows—
(a) that section is complied with by forwarding copies of the resolutions together with the application in accordance with section 54C,
(b) copies of the resolutions must not be so forwarded before the relevant date, and
(c) subsection (1) of that section has effect in relation to the resolutions as if it referred to 15 days after the relevant date.
(4) The relevant date is—
(a) if an application is made under section 54A for cancellation of the resolutions—
(i) the date on which the court determines the application (or if there is more than one application, the date on which the last to be determined by the court is determined), or
(ii) such later date as the court may order;
(b) if there is no such application—
(i) if having regard to the number of members who consented to or voted in favour of the resolutions, no such application may be made, the date on which the resolutions were passed or made (or, if the resolutions were passed or made on different days, the date on which the last of them was passed or made);
(ii) in any other case, the end of the period for making such an application.
54A.—(1) Where special resolutions have been passed with a view to a company ceasing to be a community interest company and becoming a charity, an application to the court for the cancellation of the resolutions may be made—
(a) by the holders of not less in the aggregate than 15% in nominal value of the company’s issued share capital or any class of the company’s issued share capital (disregarding any shares held by the company as treasury shares);
(b) if the company is not limited by shares, by not less than 15% of its members; or
(c) by the holders of not less than 15% of the company’s debentures entitling the holders to object to an alteration of its objects;
but not by a person who has consented to or voted in favour of the resolutions.
(2) The application—
(a) must be made within 28 days after the date on which the resolutions were passed or made (or, if the resolutions were passed or made on different days, the date on which the last of them was passed or made), and
(b) may be made on behalf of the persons entitled to make it by such one or more of their number as they may appoint for the purpose.
(3) On the hearing of the application the court shall make an order either cancelling or confirming the resolutions.
(4) The court may—
(a) make that order on such terms and conditions as it thinks fit,
(b) if it thinks fit adjourn the proceedings in order that an arrangement may be made to the satisfaction of the court for the purchase of the interests of dissentient members, and
(c) give such directions, and make such orders, as it thinks expedient for facilitating or carrying into effect any such arrangement.
(5) The court’s order may, if the court thinks fit—
(a) provide for the purchase by the company of the shares of any of its members and for the reduction accordingly of the company’s capital; and
(b) make such alteration in the company’s articles as may be required in consequence of that provision.
(6) The court’s order may, if the court thinks fit, require the company not to make any, or any specified, amendments to its articles without the leave of the court.
54B.—(1) On making an application under section 54A (application to court to cancel resolutions) the applicants, or the person making the application on their behalf, must immediately give notice to the registrar of companies.
This is without prejudice to any provision of rules of court as to service of notice of the application.
(2) On being served with notice of any such application, the company must immediately give notice to the registrar.
(3) Within 15 days of the making of the court’s order on the application, or such longer period as the court may at any time direct, the company must deliver to the registrar a copy of the order.
(4) If a company fails to comply with subsection (2) or (3) an offence is committed by—
(a) the company, and
(b) every officer of the company who is in default.
(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.
54C.—(1) An application to cease to be a community interest company and become a charity must be accompanied by—
(a) a copy of the special resolutions,
(b) a copy of the company’s articles as proposed to be amended, and
(c) the statement required by subsection (2).
(2) The statement required is—
(a) where the company is to become an English charity, a statement by the Charity Commission that, in its opinion, if the proposed changes take effect the company will be an English charity and will not be an exempt charity;
(b) where the company is to become a Scottish charity, a statement by the Scottish Charity Regulator that if the proposed changes take effect the company will be entered in the Scottish Charity Register;
(c) where the company is to become a Northern Ireland charity, a statement by the Commissioners of Her Majesty’s Revenue and Customs that the company has claimed exemption under section 505(1) of the Income and Corporation Taxes Act 1988.
(3) In subsection (2)(a) “exempt charity” has the same meaning as in the Charities Act 1993 (see section 96 of that Act).
(4) On receiving an application to cease to be a community interest company and become a charity, together with the other documents required to accompany it, the registrar of companies must (instead of recording the documents and entering a new name on the register)—
(a) forward a copy of each of the documents to the Regulator, and
(b) retain the documents pending the Regulator’s decision.”.
(2) For section 55 of that Act (becoming a charity: decisions etc) substitute—
55.—(1) The Regulator must decide whether the company is eligible to cease being a community interest company.
(2) A company is eligible to cease being a community interest company if it has complied with sections 54 and 54C and none of the following applies—
(a) the Regulator has under section 43 appointed an auditor to audit the company’s annual accounts and the audit has not been completed,
(b) civil proceedings instituted by the Regulator in the name of the company under section 44 have not been determined or discontinued,
(c) a director of the company holds office by virtue of an order under section 45,
(d) a director of the company is suspended under section 46(3),
(e) there is a manager in respect of the property and affairs of the company appointed under section 47,
(f) the Official Property Holder holds property as trustee for the company,
(g) an order under section 48(2) or (3) is in force in relation to the company,
(h) a petition has been presented for the company to be wound up.
(3) The Regulator must give notice of the decision to the registrar of companies (but the registrar is not required to record it).
55A.—(1) If the Regulator gives notice of a decision that the company is eligible to cease being a community interest company, the registrar of companies must—
(a) proceed in accordance with section 80 of the Companies Act 2006 (change of name: registration and issue of new certificate of incorporation), and
(b) if the registrar enters the new name of the company on the register, retain and record the documents mentioned in section 54C(4).
(2) The new certificate of incorporation must state—
(a) that it is issued on the company’s ceasing to be a community interest company, and
(b) the date on which it is issued.
(3) On the issue of the certificate—
(a) the changes in the company’s name and articles take effect, and
(b) the company ceases to be a community interest company.
(4) If the Regulator decides that the company is not eligible to cease being a community interest company, the company may appeal to the Appeal Officer against the decision.”.
238. Omit section 58 of that Act (extension of provisions about the registrar etc.).
239. In section 60 of that Act (offences), in subsection (1) for “this Part” substitute “section 48 or 59 or paragraph 5 of Schedule 7”.
240. In section 62 of that Act (regulations), in subsection (5) (regulations subject to affirmative resolution procedure) for “section 37” substitute “section 37C”.
241.—(1) Section 63 of that Act (interpretation) is amended as follows.
(2) In subsection (1), omit the definitions of “the 1985 Act”, “the 1986 Order” and “the Gazette”.
(3) Omit subsections (2) and (3).
242. In Schedule 22 to the Civil Partnership Act 2004 (references to stepchildren in Northern Ireland legislation), omit paragraphs 11 to 16 and 18.
243.—(1) The Pensions Act 2004 is amended as follows.
(2) In section 44(2) (meaning of “service company”)—
(a) in paragraph (a) for “within the meaning given by section 735(1) of the Companies Act 1985” substitute “as defined in section 1(1) of the Companies Act 2006”;
(b) in paragraph (c)—
(i) for “accounts” substitute “individual accounts”, and
(ii) for “section 226 of that Act” substitute “Part 15 of that Act”.
The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009