A Q&A guide to doing business in Ireland.
This Q&A gives an overview of key recent developments affecting doing business in Ireland as well as an introduction to the legal system; foreign investment, including restrictions, currency regulations and incentives; and business vehicles and their relevant restrictions and liabilities. The article also summarises the laws regulating employment relationships, including redundancies and mass layoffs, and provides short overviews on competition law; data protection; and product liability and safety. In addition, there are comprehensive summaries on taxation and tax residency; and intellectual property rights over patents, trade marks, registered and unregistered designs.
This article is part of the PLC multi-jurisdictional guide to doing business worldwide. For a full list of contents, please visit www.practicallaw.com/dbi-mjg.
Ireland’s most recent budget affirmed Ireland’s commitment to maintaining the 12.5% headline rate of corporation tax.
Ireland operates a refundable 25% research and development (R&D) tax credit for relevant expenditure which can provide an overall effective corporation tax reduction of 37.5% and tax relief for R&D employees. The amount of expenditure that is eligible for the R&D tax credit has been increased from EUR100,000 to EUR200,000.
Ireland has a programme of relief for certain employees of overseas companies posted to work in Ireland which allows a relevant amount of their taxable income in Ireland to be excluded from tax. The programme is designed to enable multinational companies to attract key talent to Ireland from abroad.
The Irish government recently published a new Companies Bill which will, when enacted, consolidate the existing Companies Acts 1963 to 2012 into one piece of legislation and will introduce significant reforms in a number of areas. The Bill will provide a new company law code to the users of Irish company law.
Ireland has a common law legal system.
The government encourages foreign investments and the tax regime is particularly favourable. Authorisations from regulatory bodies are required in certain sectors (including banking, financial services and telecommunications).
As Ireland is a member of the European Union there are generally no restrictions on trade or free competition between it and the other member states. However, doing business in non-EU countries may be subject to certain restrictions and may require additional authorisations and licenses.
There is no exchange control. However, the Minister for Finance can restrict financial transfers between Ireland and other countries, provided the restriction conforms with EU law (Financial Transfers Act 1992).
There are several government agencies responsible for promoting investment. Various grants and investment incentives are available from these agencies, depending on the nature, size and location of the proposed investment.
Companies are the business vehicle most commonly used by foreign investors. These include:
Private limited companies.
Public limited companies.
Companies limited by guarantee (with share capital, deemed private and without share capital, deemed public).
Societas Europaea (deemed public companies).
The primary advantages of companies include:
Limited liability for members (except for an unlimited company).
Separate legal personality to members.
The ability to benefit from tax advantages including corporate tax rate.
The ability to raise finance on foot of security.
The ability to have multiple members (99 for private companies, unlimited for public companies).
The ease of transfer of an interest in the business.
The ability to clearly define the management structure.
However, the disadvantages of a company include:
The requirement to deliver particulars of a large number of events to the Companies Registration Office (CRO) for filing on the public register.
The requirement to file financial statements (except for a certain type of unlimited company).
The requirement to have financial statements audited (except for certain private companies).
Another form of business vehicle encountered in Ireland is the partnership model which is the default method of carrying on business between two or more persons (including corporate entities). A partnership can exist without formal registration and partners have unlimited liability. Limited partnerships are also permitted in Ireland. In this case, a distinction is drawn between general partners who manage the firm’s business and have unlimited liability, and limited partners who invest fixed amounts of money in the partnership and are liable for its debts and obligations up to the amount of their capital investments. It is possible for a limited liability company to be the general partner.
The primary advantages of a partnership are that they:
Are transparent from an accounting and taxation perspective.
May tailor their management and governance structure to suit their needs.
Are not subject to Irish company law.
The main disadvantages are that:
They do not have separate legal personality from the partners that comprise them (except in the case of limited liability partnerships where all partners will have unlimited liability).
Succession of ownership is not as straightforward as in a company.
The most common form of business vehicle used by foreign companies is a private limited liability company. Foreign investors intending to carry on business in Ireland most frequently look to form a private company limited by shares rather than a public company. This is because fewer obligations apply to a private company and the restrictions applicable to a private company do not concern a foreign investor, who generally would not intend that the Irish company would have a large number of shareholders.
For a private limited liability company to obtain a certificate of incorporation from the CRO, it must:
Pay a fee of EUR100 or EUR50 if the CRODisk scheme (an electronic incorporation scheme) is used to incorporate the company.
File the company’s memorandum and articles of association (articles).
File Form A1 which contains details of:
the company’s name;
its registered office;
its principal activity;
the directors and secretary; and
subscribers and their shares.
A private company can be incorporated within ten working days under the Fé Phráinn system (a quick incorporation scheme), provided the memorandum and articles are in a form approved by the CRO. It takes three to four weeks to incorporate any other type of company.
A private company can be incorporated within five working days under the CRODisk, but is only open to members of the Fé Phrainn scheme. The memorandum and articles must also be in a form approved by the CRO.
Periodical reporting. Private companies must provide the CRO with an annual return appending the last filed audited accounts and providing details of the company’s officers, members, and share capital as at the date the return is made up to.
Ongoing reporting. Private companies must inform the CRO of certain matters within a specified timeframe of their occurrence including:
updates to the memorandum and articles;
changes of registered office;
changes in the directors and secretary;
details of allotments of shares;
details of any changes to their share capital.
Private limited liability companies must have one secretary and a minimum of two directors. The secretary can be one of the directors. A corporate body cannot act as a director. At least one director of the company must be resident in a member state of the European Economic Area (EEA), unless the company places a bond to the value of EUR25,394.76 as security for compliance with company and tax law.
There are no restrictions on foreign managers or directors, provided they are legally working in Ireland (see Question 12).
A director can be liable for the acts of the company. Directors must:
Act in good faith.
Act in the company’s best interests.
Carry out their functions with due care, skill and diligence.
A director can also be liable in tort for negligent behaviour.
Directors can potentially be criminally liable for contravening the company’s obligations in respect of transactions with directors and for failure to disclose related party transactions in the company accounts.
Directors can also be held criminally liable for certain crimes, including fraud and breach of environmental laws and health and safety legislation.
Parent companies are not, in general, liable for acts of subsidiaries because each company is a completely separate entity (unless, for example, a parent company guarantees a loan or the subsidiary has unlimited liability).
Employment protection laws in Ireland apply to all employees working in Ireland, whether from Ireland, the EEA or elsewhere. Whether these laws apply to Irish employees working abroad depends on the:
Nature of the employee’s posting abroad.
If the contract does not specify the governing law and jurisdiction, the usual European conventions apply, and the deciding issue is where the employee habitually carries out his duties. The exclusion of mandatory employee protection laws through a choice of law clause which operates to the detriment of the employee is not permitted.
Employment law is primarily governed by:
The Constitution of Ireland 1937.
Irish statutes and EU law.
Common law (including contract law).
Statutory mechanisms put in place by the state to regulate certain sectors, including:
Registered Employment Agreements (REAs);
Joint Labour Committee Decisions (JLCs);
collective bargaining agreements;
custom and practice in the workplace and workplace rules.
The primary legislation regulating employment relationships include the:
Unfair Dismissals Acts 1977 to 2007.
Employment Equality Acts 1998 to 2011.
National Minimum Wage Act 2000 and the Payment of Wages Act 1991.
Terms of Employment (Information) Acts 1994 to 2001.
Maternity Protection Acts 1994 to 2004 and other protective leave legislation.
Minimum Notice and Terms of Employment Acts 1973 to 2005.
Fixed Term Workers, Part Time Employees and Agency Workers Protection Legislation.
Organisation of Working Time Act 1997.
While a written contract of employment is not required, employers must provide employees with a written statement of certain terms and conditions of employment within two months of starting employment. The minimum mandatory requirements are set out in the Terms of Employment (Information) Acts 1994 and 2001.
Most employers choose to put a written contract of employment in place. An employment contract includes both its express written terms and implied terms. Terms are implied by:
Common Law, for example, the employer’s duty of care and the employee’s duty of fidelity.
Custom and practice in the workplace, for example, sick pay and overtime procedures.
The employee and employer can agree terms and conditions individually or through collective bargaining.
Nationals from non-exempt countries must obtain a visa before travelling to Ireland. Details of exempt and non-exempt countries can be obtained from the Department of Foreign Affairs (www.dfa.ie). Possession of a valid visa is essential for visa-required nationals, however it does not confer a right to work as there is a separate process for employment permits. Similarly, the grant of an employment permit does not grant any entry or residency rights, and visa-required nationals must still comply with visa requirements after obtaining an employment permit.
Employment permits are required by all non-EEA/Swiss nationals (except for certain individuals, such as non-EEA spouses of EU citizens, for whom a separate process applies).
The Employment Permits Acts 2003 and 2006 establish a statutory regime governing employment permits which is operated by the Department of Jobs, Enterprise and Innovation (www.djei.ie). There are three primary types of permit, that is, green cards, work permits and intra company transfer permits.
Applications for green cards can be made for two categories of occupation, based on salary level:
Where the annual salary (excluding bonuses) on offer is EUR60,000 or more, the green card permit is available for all occupations, other than those which are contrary to the public interest.
Green card permits are available in the annual salary range EUR30,000 to EUR59,999 (excluding bonuses) for a restricted number of strategically important occupations which are subject to updating and change.
Holders of a green card are entitled to immediate family re-unification rights which means that their spouses/partners and dependent children (if any) may accompany them to Ireland on the basis of the green card permission.
A green card is valid for a two year period after which the employee may apply for residency permission in Ireland which will allow them to live and work in Ireland without requiring an employment permit.
These are available for occupations with a salary of EUR30,000 or more (or in exceptional cases, below EUR30,000). Work permits are issued for an initial period of two years and can then be renewed for a further three years. Work permit holders are not entitled to immediate family re-unification and must be working in Ireland for at least 12 months before an application may be made for immediate family to join. This application is entirely at the discretion of the Irish immigration authorities. After five years, the employee may apply for permission to reside in Ireland and to work without the need for an employment permit.
These permits allow for the transfer of senior management, key personnel or trainees who are foreign nationals from an overseas branch of a multinational corporation to its Irish branch subject to the following conditions:
The employee earns a minimum salary of EUR40,000.
The employee worked for a minimum period of 12 months with the overseas company prior to transfer.
The Intra Company Transfer permit is strictly for assignments of a temporary nature and therefore, the maximum permissible duration is five years. After this time, the holder must return to their home country.
The processing times, criteria, requirements and benefits of each permit type vary. The fees for permits depend on the:
Type of permit sought.
Length of the permit.
Fees typically range from EUR500 to EUR2,250.
For most employment permits, the employer must establish that it is not possible to fill the position with an Irish or other EEA national. The labour market needs tests apply for certain permits (that is, public advertising of the role within the EU for a specified period before considering a non-EEA/Swiss national for a permit).
Employees are not entitled to management representation or consultation rights except as follows:
In an undertaking employing 50 employees or more, employees are entitled to establish an information and consultation forum. Establishing a forum is not mandatory unless certain criteria are met in accordance with the Employee (Provision of Information and Consultation) Act 2006.
Employees must be consulted on collective redundancies (Protection of Employment Act 1977).
Employees must be informed of certain matters under the European Communities (Protection of Employees on a Transfer of Undertakings) Regulations 2003 and consultation must take place where measures are envisaged as part of that process.
Where it has been agreed between the parties to consult on certain matters.
Under unfair dismissal legislation, all dismissals are automatically deemed unfair and it is for the employer to justify the substantial grounds for its decision to dismiss (except in constructive unfair dismissal cases where the burden of proof is reversed and the employee must justify his decision to resign).
The unfair dismissal legislation generally applies to all employees who have completed one year’s continuous service (including any notice entitlement). However, if the employee claims unfair dismissal on certain grounds (such as trade union membership or activities, pregnancy or denial of entitlements under maternity legislation), the requirement of one year’s service is waived.
Acceptable grounds for dismissal are those relating to the employee’s:
Contravention of statute.
However, a catch-all provision also allows for employers to advance other substantial grounds. There is no requirement to pay an employee severance in the event of a dismissal, unless it arises by reason of redundancy (see Question 15). Some employers may choose to offer an ex-gratia payment on termination of employment in exchange for a waiver of the employee’s right to bring claims arising under statute, contract, tort, common law or equity.
Where an employee alleges unfair dismissal, a claim can be brought before either:
A Rights Commissioner.
The Employment Appeals Tribunal.
The claim must be made within six months of the date of dismissal, but this can be extended to 12 months in exceptional circumstances. The unfair dismissal regime operates separately to an employee’s right to bring a common law claim before the civil courts (for example, for breach of contract). However, the employee cannot recover damages in both forums.
Remedies for unfair dismissal include:
The maximum award that can be awarded for an unfair dismissal is 104 weeks’ remuneration, except in cases where the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 applies. In this case, the award of damages can be up to five years’ remuneration, depending on the employee’s length of service. In civil cases, the court will award damages in accordance with the usual principles, depending on the nature of the claim.
Under contract law and statute, an employer or employee wishing to terminate employment must give the other party notice of termination. Notice should be the longer of contractual notice or statutory minimum notice. The length of the statutory minimum notice depends on the employee’s length of service:
13 weeks to two years’ service: one week’s notice.
Two to five years’ service: two weeks’ notice.
Five to ten years’ service: four weeks’ notice.
Ten to 15 years’ service: six weeks’ notice.
15 or more years’ service: eight weeks’ notice.
Redundancies are regulated by three primary pieces of legislation:
The Redundancy Payments Acts 1967 to 2007.
The Protection of Employment Acts 1977 to 2007.
The Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007.
The Protection of Employment Acts 1977 to 2007 prescribes the procedures to be followed in a collective redundancy. This includes employee representation and a mandatory consultation process.
A collective redundancy arises if over any 30 consecutive days:
Five employees are dismissed in an undertaking normally employing more than 20 and fewer than 50 employees.
20 employees are dismissed in an undertaking normally employing more than 50 but fewer than 100 employees.
10% of employees are dismissed in an undertaking normally employing more than 100 and fewer than 300 employees.
30 employees are dismissed in an undertaking normally employing 300 or more employees.
Under the Redundancy Payments Acts 1967 to 2007, a statutory redundancy payment is generally payable to employees who have completed more than 104 weeks’ service. In basic terms, statutory redundancy is calculated as two weeks’ pay per year of service, plus one additional “bonus week”, with a week’s pay capped at a maximum of EUR600.
Individuals are tax resident for a particular tax year if they are present in Ireland either for:
183 days or more in that year.
280 days or more over that year and the previous tax year taken together.
An employee is not regarded as resident for any tax year in which he spends 30 days or less in Ireland.
Income tax. Employees are liable to income tax on their worldwide annual taxable income at:
20% on the first EUR32,800.
41% on the remainder.
There are individual tax credits, which vary depending on the employee’s circumstances, and can be set off against their income tax liability.
Universal Social Charge (USC) applies from 1 January 2011 to replace the health and income levies, at rates varying from 2% to 10%, depending on income and age. USC is treated as a tax rather than a social security contribution for tax purposes.
Social security contributions. PRSI (social insurance) also generally applies at 4% for employees.
In general, salaries derived by a non-tax resident employee from employment in Ireland can be taxable both in Ireland and in the employee’s country of residence if the duties of employment are carried on in Ireland, subject to any relief provided by a double tax treaty (see Question 25).
Temporary assignees to Ireland from an EU member state, or a country with which Ireland has a social security totalisation agreement (such as that between Ireland and the US) may have to continue to pay social security contributions in their home country. Otherwise PRSI may apply.
PRSI (social insurance) generally applies at 10.75% for employers.
Companies incorporated in Ireland are automatically considered resident in Ireland, subject to certain exceptions. Where the exceptions apply or where the company is not Irish incorporated, the company is regarded as resident in Ireland if it is centrally managed and controlled in Ireland. The terms of a double tax treaty can render an otherwise Irish resident company non-Irish resident by virtue of being resident in a treaty partner country.
Non-resident companies must pay corporation tax on income arising from a trade carried out in Ireland through a branch or agency. Income received by a non-resident company which is not attributable to a branch or agency but which arises from an Irish source (for example, rental income or deposit interest) may be liable to Irish income tax, subject to the provisions of any relevant double tax treaty. Irrespective of residence, stamp duty is charged on certain documents executed in Ireland which relate to any property situated in Ireland or any matter or thing done or to be done in Ireland, wherever executed.
Companies that are resident in Ireland must pay corporation tax on worldwide profits and capital gains (subject to double taxation treaty relief).
The standard rate of corporation tax on Irish trading profits is 12.5%. To benefit from this rate, companies must derive income from a trade that is actively carried on in Ireland.
A rate of 25% applies to non-trading (for example, rental income and royalty income) and foreign-source income.
VAT is charged on certain imports and on goods and services supplied in Ireland in the course of business. VAT ranges from 0% to 23% depending on the product or service.
Stamp duty is charged on certain documents executed in Ireland. The tax payable is either a fixed duty or a percentage of the value of the transaction (for example, 1% on share transfers, and between 1% and 2% on property transfers).
A company must pay tax on any gains it realises on the disposal of its capital assets at an effective rate of 33%. However, an exemption applies to disposals of shares held by a holding company in its subsidiary where:
The subsidiary is resident in Ireland, the EU or a treaty state.
The subsidiary is a trading company or group.
The parent held a minimum of 5% of the shares of the subsidiary for an uninterrupted period of at least 12 months in the previous 24 months.
Disposals of assets relating to these shares (for example, options to dispose of or acquire the shares) are similarly exempt.
Dividends paid to foreign corporate shareholders?
Dividends received from foreign companies?
Interest paid to foreign corporate shareholders?
Intellectual property (IP) royalties paid to foreign corporate shareholders?
Dividends paid by a resident company are generally subject to dividend withholding tax (DWT) at the standard income tax rate (currently 20%), unless both:
One of the many exemptions applies (for example, for EU residents or residents of a country that has an applicable double tax treaty with Ireland (treaty country) (see Question 25)).
A form is filed with the paying company.
Dividends are generally taxed at 25%. However, some exceptions exist:
Dividends between Irish companies are generally exempt.
A 12.5% rate applies to dividends paid out of the trading profits of EU or treaty country resident companies.
A 12.5% rate applies to dividends received by an Irish resident company from a portfolio shareholding (less than 5%) which come from:
an investment in a company resident in the EU;
a country which has a double taxation treaty with Ireland.
Ireland also operates a flexible system of foreign tax credits (including pooling) both under its tax treaty network and a system of unilateral credits for non-treaty countries.
In general, Irish source interest is subject to withholding tax at the standard income tax rate of 20%. However, many domestic exemptions exist, including exemptions for interest paid:
On commercial paper, certificates of deposit and certain listed bonds.
To all residents of EU member states (other than Ireland) and most treaty country residents.
To which the Interest and Royalty Directive applies.
Payments made for intellectual property rights are not subject to withholding tax with the exception of Irish source patent royalties and certain annual payments (which are subject to a withholding tax of 20%). However, relief under various tax treaties usually reduces the rate to 0%.
In addition to treaty relief, an exemption applies to patent royalties paid by an Irish trading company to most EU or treaty country resident companies if the royalties are both:
Made for bona fide commercial reasons.
Not made in connection with a trade or business that is carried out in Ireland through a branch or agency of the company receiving the payment.
Ireland does not have thin capitalisation rules. However, Ireland does have rules which treat interest payments to certain non-EU resident associated companies as distributions.
Ireland does not have any controlled foreign company rules.
Ireland implemented a transfer pricing regime in 2010 that is based on OECD principles. It applies to arrangements concluded on or after 1 July 2010. The transaction is taxed as if it were at arm’s-length if all of the following conditions apply, the:
Arrangement involves a supply and acquisition of goods, services, monies or intangible assets.
Parties to the arrangement are connected.
Relevant transaction is taxed as part of the trading activities of either or both parties.
Effect of the arrangement is to result in the understatement of trading profits that are subject to tax in Ireland at the 12.5% rate.
The transfer pricing regime does not apply to small-to-medium enterprises, which are those with both:
Less than 250 employees.
Turnover of less than EUR50 million or assets of less than EUR43 million on a group basis.
The taxation of imports and exports depends on whether goods are imported or exported within the EU or outside.
VAT is generally payable on imports. Credit is given for VAT to registered traders and so generally it is ultimately borne by the final consumer. Customs and excise duties are generally levied on imports from outside the EU. The rate of duty depends on the precise nature and circumstances of the import.
Exports are zero rated for VAT, except those exported to unregistered persons in the EU. The place of supply of certain services is subject to the “reverse charge mechanism”.
Ireland has signed comprehensive double tax treaties with 68 countries, of which 63 are in effect, including treaties with all EU member states, the US, China, India and all OECD member countries. Ireland generally grants the benefit of treaties on their signature, pending ratification.
The Irish Competition Authority is the relevant enforcement body. The Competition Authority must take court proceedings in order to establish an infringement of the competition rules.
Irish competition law is based on EU competition law and is contained in the Competition Acts 2002 to 2012 (The Competition Act). The Competition Act prohibits:
All restrictive arrangements between undertakings (unless they satisfy certain efficiency conditions) (section 4, Competition Act).
The abuse of a dominant position by one or more undertakings in any market in Ireland (section 5, Competition Act).
Infringements of competition law can be challenged under criminal and civil law. In practice, only serious cartel infringements (for example, price-fixing) are criminally prosecuted where the potential sanctions include:
A fine for the undertakings concerned.
A fine and/or imprisonment for senior officers of the undertakings concerned.
In civil enforcement actions, the Irish Competition Authority can seek a declaration that an infringement exists, and an injunction to prevent its continuance, but does not have the power to:
Impose an infringement finding which is binding on an undertaking by administrative decision.
Impose administrative fines.
If the Competition Authority settles a civil case, the settlement can be made an Order of the High Court.
Unilateral conduct is regulated by section 5 of the Competition Act which prohibits the abuse of a dominant position by one or more undertakings in a market in Ireland or part of Ireland.
Infringement of section 5 can be challenged under the criminal and civil standard but, in practice, actions will only be taken in the civil courts. The High Court can also impose structural remedies on dominant companies which abuse their dominance.
Mergers and acquisitions fall under the provisions of the EU Merger Regulation or, failing that, the Competition Act. Notification depends on the turnover of the undertakings involved.
Notification to the Competition Authority will be required if all of the following thresholds are met:
The worldwide turnover of each of two or more of the undertakings involved in the proposed transaction is not less than EUR40 million.
Two or more of the undertakings involved in the proposed transaction carries on business in any part of the island of Ireland.
The turnover in Ireland of any one of the undertakings involved in the proposed transaction is not less than EUR40 million.
Foreign to foreign acquisitions are subject to the notification requirements if they meet the thresholds, regardless of where they are domiciled.
On notification, the Competition Authority considers whether the merger should be allowed to proceed.
Special considerations apply to mergers involving media businesses.
Definition and legal requirements. For an invention to be patentable, it must (Patents Act 1992):
Be susceptible to industrial application.
Involve an inventive step.
The patent owner can prevent direct or indirect use of his invention by third parties without his consent.
Registration. The Controller of Patents, Designs and Trade Marks at the Irish Patents Office (IPO) grants patents. The procedure is by submission of application and the fees vary depending on the type of application made.
Enforcement and remedies. The patent owner can enforce his patents rights in court. Remedies include obtaining:
An account of profits arising from the alleged infringement.
An injunction restraining the defendant from infringing the patent.
An order requiring the defendant to deliver up or to destroy any goods covered by the patent.
A declaration that the patent is valid and has been infringed.
Length of protection. A patent can be granted for a full term of 20 years. It is possible to obtain a short term patent for a period of 10 years. In obtaining a short term patent, there is a lower threshold of inventiveness.
Definition and legal requirements. Trade marks are defined as any sign capable of both:
Being represented graphically.
Distinguishing goods or services of one undertaking from those of other undertakings.
Protection. Protection for an Irish trade mark is obtained by application for registration at the IPO. The Trade Marks Act 1996 gave effect to the Council Regulation No. 40/94 on the Community Trade Mark (CTM). If a party wishes to register a CTM, this must be done through the Office for Harmonisation in the Internal Market (OHIM) in Spain. A CTM provides EU-wide protection.
Enforcement and remedies. These are the same as for patents (see above, Patents), except that a declaration is not an available remedy for trade mark infringement.
Length of protection and renewability. Protection lasts for ten years and is indefinitely renewable for ten-year periods, subject to the payment of fees.
Definition. A design means the appearance of the whole or a part of a product resulting from the following features of the product itself or its ornamentation:
To be registrable as a design, it must be new and have individual character. The owner of the design can assert his rights against any third party who undertakes any act which is the exclusive right of the owner.
Registration. An Irish registered design right is obtained by registration at the IPO. Community designs are registered with OHIM.
Enforcement and remedies. The design owner can enforce the right in court. Remedies include damages, an injunction and an account of profits.
Length of protection and renewability. Protection lasts for five years, renewable for successive five-year periods (up to a total of 25 years).
Definition and legal requirements. Unregistered designs that are novel are protected by Regulation (EC) No 6/2002 on Community designs. For the unregistered design to come into existence, it must have been made available to the public after 6 March 2002. Protection is limited to the prevention of the copying of the design.
Enforcement and remedies. The owner of the unregistered design can enforce the right in court against any third party who undertakes any act which is the exclusive right of the proprietor. It attaches a presumption of validity to designs made available to the public after 6 March 2002.
Length of protection. Protection lasts for three years from the date on which the design was first made available to the public within the EU.
Definition and legal requirements. Copyright subsists in:
Original literary, dramatic, musical or artistic works.
Sound recordings, films, broadcasts and cable programmes.
The typographical arrangement of published editions.
Protection. In order to obtain protection, the work must be original. The protection applies to works only and not ideas. It subsists automatically on creation and there is no registration requirement. The copyright owner is granted the following (Copyright and Related Rights Act 2000):
Making available rights.
Rental and lending rights.
An infringement occurs where an unauthorised party undertakes any of these acts or authorises a third party to undertake the acts without the permission of the copyright owner.
Enforcement and remedies. The copyright owner can enforce the right in court. Remedies include:
A delivery up order.
A seizure order.
A destruction order.
An account of profits.
Length of protection and renewability. Copyright in literary, dramatic, musical and artistic works or original databases lasts for the lifetime of the author plus 70 years. Protection in a film expires 70 years after the death of the last of the following people:
The principal director of the film.
The author of the screenplay of the film.
The author of the dialogue of the film.
The author of music specifically composed for use in the film.
Copyright in a sound recording generally lasts for 50 years after it is made or made available (if it is made available during such 50 years). Copyright in a broadcast expires 50 years after the broadcast is first transmitted. Protection in a computer-generated work expires 70 years after the date on which the work is first made lawfully available to the public.
Confidential information is information communicated in circumstances importing an obligation of confidence (for example, in the course of employment). Protection can arise automatically at common law or under contract. Whether the protection arises depends on the type of information imparted. The information must have the necessary quality of confidence. The information must have been imparted in circumstances which imposed an obligation of confidentiality on the other person. The right is enforced by an action for breach of confidence, either under contract law or under tort law. Protection lasts for as long as the information remains confidential and there is a legitimate interest that requires protection. A party alleging a breach of confidence must be able to show that the other person used the information in a manner that is not intended or authorised by the owner.
Commercial agency is regulated by the European Communities (Commercial Agents) Regulations 1994 and 1997. Agency agreements must be evidenced in writing. The regulations contain certain mandatory provisions which afford protections for commercial agents, in particular a right to compensation on the termination of the agency relationship.
Distribution agreements are a type of contract for sale. Therefore, suppliers’ duties are set out in the Sale of Goods Act 1893, as amended by the Sale of Goods and Supply of Services Act 1980.
There is no single statute or code in Ireland which governs the law as it relates to franchising. The law of franchising is for the most part governed by:
The ordinary principles of contract law.
The laws relating to intellectual property.
In many instances, competition law.
In addition, the provisions of the European Commission Guidelines on Vertical Restraints (2000 /C 291/01) sets out the principles for assessment of vertical agreements. Furthermore, the Declaration in respect of Vertical Agreements and Concerted Practices (D/O3/001) issued by the Competition Authority applies to all agreements or concerted practices entered into between two or more undertakings. This relates to the conditions under which parties can purchase, sell or resell certain goods or services.
E-commerce is regulated by the following legislation:
The Electronic Commerce Act 2000 implements the Electronic Signatures Directive 1999/93/EC and some provisions of the Electronic Commerce Directive 2000/31/EC. The remaining provisions of the latter Directive were implemented by the Electronic Commerce Regulations 2003 (SI 68/2003). The Electronic Commerce Act 2000 regulates electronic signatures and advanced electronic signatures as well as electronic forms of original information. The European Communities (Protection of Consumers in Respect of Contracts made by means of Distance Communications) Regulations 2001 regulates distance contracts.
The European Communities (Companies) (Amendment) Regulations 2007 provides that Irish registered limited liability companies must display certain basic information on their websites and certain electronic communications.
The Consumer Protection Act 2007 prohibits misleading commercial practices (section 42, Consumer Protection Act 2007). In particular, it protects consumers from misleading advertising and ensures that trade is fair. EU law also prohibits misleading advertising (SI 134/1988 (European Communities (Misleading Advertising) Regulations 1988). Misleading advertising is that which deceives or is likely to deceive a party that sees it. The Consumer Protection Act 2007 also set up the National Consumer Agency (the Agency) (section 7, Consumer Protection Act 2007). The responsibilities of the Agency include the promotion and protection of the interests and welfare of consumers. The Agency, as part of its role, prosecutes for breaches of consumer law, such as misleading advertising. For example, after investigation by the Agency, according to the 2009 Annual Report, two website operators using bait advertising or sensationalist advertising agreed to amend their advertisements.
The Advertising Standards Authority of Ireland (the ASAI) is an independent, self-regulatory group set up and funded by the advertising industry. They are committed to promote high standards in advertising, in the public interest, and they investigate complaints made by individuals. The ASAI have produced a Code that members must abide by. The ASAI Code covers advertising in the format of advertisements in the following:
Magazines and other printed publications, including:
posters and aerial advertisements;
mailings and fax transmissions;
Commercials broadcast on television or radio or screened in cinemas.
Advertisements carried on audiotapes, videotapes and other electronic and computer systems.
Sales promotion material.
Advertisement features and promotions.
In addition to this, certain industries are governed by industry specific rules, for example, specialised advertisements to medical and other professionals, advertising by certain professions and the promotion of medicines.
The Data Protection Acts 1988 and 2003 regulate the procedure for direct marketing by organisations.
Data protection is regulated primarily by the:
Data Protection Acts 1988 and 2003 (which implements Directive 95/46/EC).
European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (which implements Directive 2002/58/EC, as amended by directive 2006/24/EC and 2009/136/EC).
These data protection provisions are enforced and administered by the Office of the Data Protection Commissioner.
Product liability is regulated by:
The Liability for Defective Products Act 1991. Strict liability is imposed on a producer for damage caused wholly or partially by a defect in his product.
Contract law. Under the Sale of Goods Act 1893 as amended by the Sale of Goods and Supply of Services Act 1980, goods must:
be of merchantable quality;
be as described;
be fit for their intended purpose; and
correspond to sample.
Consumer Protection Act 2007. This Act updated and consolidated existing consumer legislation in Ireland.
The product safety regime is set down by the European Communities (General Product Safety) Regulations 2004, which prohibit the placing of dangerous products on the market, and can impose criminal liability.
Main activities. It is responsible for implementing and developing the areas of enterprise and innovation, and supporting the creation of jobs.
Main activities. The statutory authority for registering new companies in Ireland.
Main activities. It is responsible for collecting taxes and duties and implementing Custom controls.
Main activities. It provides assistance to Irish owned companies or subsidiaries of foreign companies.
Main activities. It deals with grant assistance for inward investment.
Work permit/residency permit requirements for foreign employees
Nationals from non-exempt countries must obtain a visa before travelling to Ireland. Employment permits are required by all non-EEA/Swiss nationals (subject to exceptions).
The main types of permit are:
Labour market tests may also apply.
Description. Contains the Acts of the Oireachtas (Parliament), Statutory Instruments and Legislation Directory for the period 1922-2011.
Description. Information relating to taxes and duties.
Description. Information relevant to companies and filing obligations.
Description. Information relevant to employees and employers.
Description. Information relevant to employees and employers.
Description. Information relevant to employees and employers.
Description. The website provides visa information.
Description. Information relating to The Competition Authority.
Description. The website provides data protection information.
Description. The website provides information relating to intellectual property.
Professional qualifications. New York Bar (non-practising), 1999;
Solicitor in Ireland, 1996; HDBS, 1993, Smurfit Graduate School of Business, University College, Dublin; BCL, 1992, University College, Cork
Areas of practice. Corporate and M&A; commercial agreements and contracts; company compliance and governance; inward investment; insurance and reinsurance.
The Bar Association of the City of New York.
The New York Bar Association.
The American Bar Association.
The Irish Chamber of Commerce in the U.S.
Author of the Lex Mundi Guide to Doing Business in Ireland.
Author of the Chambers Europe Country Overview: Ireland.