PART III

Subsidiaries

34. —(1) For the purpose of enabling its principal activities to be carried on by subsidiaries of the Company, the Company shall, with the consent of the Minister and the Minister for Finance, cause such number of companies as it considers appropriate to be formed and registered under the Acts.

(2) The subsidiaries shall be limited by shares and conform to the conditions laid down in the Acts.

(3) Each of the subsidiaries shall be exempt from the requirement of section 6(1)(b) of the Act of 1963 to include the word “limited” or the word “teoranta” as the last word of its name.

35. —The Minister shall, as soon as practicable after the vesting day, and after consultation with the Minister for Finance and the Company, by order appoint, in respect of each subsidiary, a day to be the transfer day.

36. —The objects of the subsidiaries, as stated in their memoranda of association, shall be such that, as soon as practicable after the transfer day, the principal activities, at least, of the Company are carried on by the subsidiaries.

37. —(1) There may be included among the objects of each of the subsidiaries such other functions of the Company as may be approved by the Company with the consent of the Minister and the Minister for Finance.

(2) Nothing in this section shall prevent or restrict the inclusion among the objects of any of the subsidiaries, as stated in its memorandum of association, of all such objects and powers as are proper for or incidental or ancillary to the due attainment of its principal objects.

(3) Section 5 of the Act of 1990 shall apply to each of the subsidiaries as if the references to the Board were references to each of the subsidiaries.

(4) Where any function of the Company is a function of a subsidiary, every provision of any enactment relating, or applied by this Act, to the Company shall, in respect of that function and subject to the provisions of this Act, apply to the subsidiary as it applies to the Company with any necessary modifications.

(5) A subsidiary shall perform its functions in compliance with such directions as the Company may give to it in writing from time to time.

38. —The memorandum of association of each of the subsidiaries shall be in such form consistent with this Act as may be approved of by the Company with the consent of the Minister and the Minister for Finance.

39. —The articles of association of each of the subsidiaries shall be in such form consistent with this Act as may be approved of by the Company with the consent of the Minister and the Minister for Finance.

40. —Notwithstanding anything contained in the Acts, an alteration in the memorandum of association or articles of association of a subsidiary shall not be valid or effectual unless it is made with the consent of the Minister and the Minister for Finance.

41. —(1) Subject to the provisions of this section, the whole of the issued share capital of each subsidiary shall be held by the Company or by nominees of the Company.

(2) One share in the share capital of each subsidiary shall be allotted to each of the subscribers to the memorandum of association of that subsidiary.

(3) The cost of the shares referred to in subsection (2) shall be advanced to the subscribers by the Company.

(4) A person who holds a share in a subsidiary as a nominee of the Company or as a subscriber to the memorandum of association of the subsidiary or by virtue of subsection (5) shall hold the share in trust for the Company and shall accordingly be bound to pay all dividends and other moneys which he or she receives in respect of the share to the Company and to transfer, as and when required by the Company, the share to the Company or a person nominated in that behalf by the Company.

(5) The Company may, from time to time as occasion requires for the purpose of compliance with so much of the Acts as requires that there shall always be a minimum number of members of a company, transfer without payment therefor to any person one of its shares in the subsidiary.

(6) Shares in a subsidiary may not be issued or transferred to a person other than the Company or a person who holds them in trust for the Company without the consent of the Minister and the Minister for Finance, and the number of shares held by the Company in a subsidiary shall not be so reduced by such an issue or transfer (unless such reduction is authorised by Dáil Éireann by resolution) that the number of such shares held by the Company is less than a majority of the issued shares in the subsidiary.

42. —(1) The chairperson of a subsidiary shall be appointed by the Company from among the directors of the subsidiary with the consent of the Minister and, subject to subsection (3), shall hold office as such chairperson for such period not exceeding 4 years as may be determined by the Company with the consent of the Minister at the time of his or her appointment.

(2) A person who holds the office of chairperson of a subsidiary shall be eligible for re-appointment to that office.

(3) The chairperson of a subsidiary may be removed from office by the Company with the consent of the Minister.

43. —(1) The number of directors of a subsidiary shall be—

(a) in case the number of shares in the subsidiary held by or in trust for the Company is 100 per cent of the issued shares in the subsidiary, not more than 6, and

(b) in any other case, such number as may be determined by the Company with the consent of the Minister.

(2) The directors of a subsidiary shall be appointed and may be removed from office by the Company with the consent of the Minister.

(3) A person who holds the office of director of a subsidiary shall be eligible for re-appointment to that office.

(4) Subject to subsection (2), the directors of a subsidiary shall hold office for such period not exceeding 4 years as may be determined by the Company with the consent of the Minister at the time of their appointment.

(5) Two of the directors of a subsidiary shall be persons appointed to be directors under the Worker Participation (State Enterprises) Acts, 1977 to 1993, who are willing to accept office, and a person who is appointed to be a director of a subsidiary under this subsection shall hold office as such director for such period as may be determined by the Company with the approval of the Minister at the time of the appointment.

(6) A director of a subsidiary who is also a director shall, if he or she ceases to be a director, thereupon cease to be a director of the subsidiary.

44. —The remuneration (if any) of the chairperson and other directors of a subsidiary and the other terms and conditions upon and subject to which they hold their respective offices shall be determined by the Company with the consent of the Minister at the time of their appointment.

45. —A person shall not be appointed to be the auditor of a subsidiary without the consent of the Minister.

46. —(1) Subject to subsection (3), each subsidiary shall appoint such, and such number of, persons to be members of its staff as it may determine.

(2) The remuneration and the other terms and conditions of employment of the staff of each subsidiary shall be such as the Company may determine.

(3) Every person who, immediately before the transfer day in relation to a subsidiary, is a member of the staff of the Company and who is designated by the Company for employment by the subsidiary shall, on the transfer day, or with effect from such later day as the Company may, as occasion requires, appoint in that behalf, become and be a member of the staff of that subsidiary.

(4) Save in accordance with an agreement negotiated with any recognised trade union or staff association concerned, a person referred to in subsection (3) shall not, while in the service of a subsidiary, be made subject to conditions of service (including conditions relating to tenure of employment and remuneration) that are less favourable to the person than those to which he or she was subject immediately before the transfer day.

(5) Until such time as the scales of pay and conditions of service of the members of the staff of a subsidiary to whom subsection (3) applies are varied by the subsidiary following consultation and after agreement with recognised trade unions, the scales of pay by reference to which they were remunerated and the conditions of service, restrictions, requirements and obligations to which they were subject immediately before the transfer day shall continue to apply to them.

(6) In relation to persons transferred to a subsidiary under subsection (3), previous service as a member of the staff of the Company shall be reckonable for the purposes of, but subject to any exceptions or exclusions in, the Redundancy Payments Acts, 1967 to 1991, the Organisation of Working Time Act, 1997 , the Minimum Notice and Terms of Employment Acts, 1973 to 1991, and the Unfair Dismissals Acts, 1977 to 1993.

(7) A member of the staff of a subsidiary shall be deemed, for the purposes of the Worker Participation (State Enterprises) Acts, 1977 to 1993, to be an employee of the Company.

47. —(1) So much of the property (including choses-in-action) that, immediately before the transfer day in relation to a subsidiary, was held or enjoyed by the Company as may be determined by the Company and the subsidiary shall, on such day or days during the period of one year beginning on that transfer day as may be determined by the Company and the subsidiary, stand vested in the subsidiary without any further conveyance, transfer or assignment for all the estate, term or interest for which, immediately before that day, it was vested in the Company but subject to all trusts and equities affecting the property and capable of being performed.

(2) The Company may, on its own initiative, and shall on the application of a subsidiary, issue a certificate in respect of specified property stating, as may be appropriate, that the property—

(a) vested in a particular subsidiary on a particular day under this section, or

(b) did not vest in any of the subsidiaries under this section, and the certificate shall be sufficient evidence unless the contrary is proved of the facts so stated.

(3) Every chose-in-action transferred by subsection (1) to a subsidiary may, after the transfer day in relation to the subsidiary, be sued on and recovered or enforced by the subsidiary in its own name and it shall not be necessary for the subsidiary or the Company to give notice to a person bound by the chose-in-action of the transfer effected by that subsection.

48. —The Company may by licence from time to time authorise the use by any of the subsidiaries of any land held by the Company on such terms as the Company may determine.

49. —(1) All rights and liabilities of the Company arising by virtue of any contract or commitment (express or implied) entered into by it before the transfer day in relation to a function conferred by virtue of this Act on a subsidiary (other than a liability in respect of any legal proceedings to which the Company is a party that are pending in any court or tribunal immediately before that transfer day) shall on that day stand transferred to the subsidiary.

(2) The Company may on its own initiative and shall on the application of a subsidiary issue a certificate in respect of a specified contract or commitment certifying, as it thinks proper, that the rights and liabilities of the Company thereunder were transferred by virtue of subsection (1) to a particular subsidiary on the transfer day in relation to the subsidiary or were not so transferred to any of the subsidiaries and the certificate shall be sufficient evidence of the facts so certified unless the contrary is proved.

(3) Every right and liability transferred by virtue of subsection (1) to a subsidiary may, on and after the transfer day, be sued on, recovered or enforced by or against the subsidiary in its own name and it shall not be necessary for the subsidiary or the Company to give notice to the person whose right or liability is transferred by this section of such transfer.

(4) Every licence, exemption, right or privilege granted to or enjoyed by the Company and in force immediately before the transfer day in relation to a subsidiary shall, on and after that day, be exercisable, while it continues in force, by the subsidiary in so far as it relates to a function conferred on the subsidiary by virtue of this Act or is incidental to or connected with such a function.

50. —Any enactment applying to the Company (including this Act) shall, with such adaptations as are necessary to enable it to have full effect in relation to a subsidiary in which, by virtue of this Act, functions of the Company are vested, apply to the subsidiary.