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Director’s duties in Ireland

09.06.2023

A recent Irish court case dealt with directors’ duties, holding non-executive directors personally liable in a case of corporate fraud, even though they had been unaware of that fraud.

In Powers v Greymountain Management Limited (in Liquidation), Coates, Grainger, Cartu and Cartu [2022] IEHC 599, Mr. Powers asked the Irish High Court to find directors personally liable in circumstances where the company had played a key role in defrauding individuals, including the plaintiff.

The case before the court

Mr. Powers invested his savings in an online enterprise which allegedly traded in binary options. The business informed him it was based in Dublin and that payments were to be made through Greymountain Management Limited, an Irish Company. In fact, the moneys were paid to two non-nationals (the Cartu brothers) and it appears no moneys were invested. The Cartu brothers controlled the company as shadow directors and used two Irish non-executive directors to comply with Irish legislation.

Beware of taking on Directors’ roles without proper guidance. Ecovis can help you with this.

John C. O’Connor, Managing Partner, O’Connor LLP*, Dublin, Ireland

The reasons for the sentencing of the non-executive directors

The court found the two shadow directors personally liable for the losses. It then considered the position of the two non-executive directors and found that they had failed to observe the basic duties of a director as they:

• failed to inform themselves about the nature of their duties as Director (or if they did, they ignored those duties);
• failed to acquaint themselves with the company’s affairs generally;
• failed to exercise appropriate supervision or oversight at board level in respect of the execution or discharge of whatever tasks or functions had been properly and appropriately delegated to others.

The court held that this was sufficient to impose personal liability on all of the directors, including the non-executive directors, notwithstanding that they had no knowledge of the fraud and had either a limited or no role in the management of the company. This case highlights the dangers for directors, and in particular for non-executive directors, in failing to have an appropriate level of understanding of the affairs of a company, say the Ecovis experts. All directors (including non-executive directors) should inform themselves about the affairs of the business and exercise appropriate supervision and oversight at board level in respect of any tasks that are delegated to others. They should inform themselves of the business of a company and not leave this to others.

For further information please contact:

John C. O’Connor, Managing Partner, O’Connor LLP*, Dublin, Ireland
Email: john.oconnor@oclegal.ie

Peter Benson, Partner, O’Connor LLP*, Dublin, Ireland
Email: peter.benson@oclegal.ie

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*O’Connor LLP – Member of ECOVIS International (Dublin)

Capital gains tax Greece: Introduction of deferral for individuals and the contribution of shares

08.06.2023

The recently enacted Law No. 5024/2023 is anticipated to offer a strong incentive for the establishment of holding companies in Greece. The law provides for a deferral of capital gains tax on securities transactions which meet certain conditions. At the same time, it also amends certain previously applicable VAT regulations. The new law came into effect on 24 February 2023.

The new provisions will apply to Greek tax residents who contribute domestic or foreign securities, such as shares, to cover or increase the capital of Greek or foreign legal entities or persons in exchange for securities issued by the recipient in question.

The main conditions for applying the tax deferral

1. The contributor of the securities must be an individual tax resident in Greece and the sole shareholder/partner of the recipient legal entity
2. The recipient must be established in a tax cooperative jurisdiction (not necessarily in the European Union)
3. The scope of the recipient entity’s business objective must relate to commercial, production or agricultural activities, or the provision of services

Speak to us if we can support you with your investment plans and business start-up.

Dimitrios Leventakis, Managing Partner, Certified Internal Auditor – IBFD Certified Tax Advisor, ECOVIS HELLAS Ltd., Athens, Greece

The practical effect of this amendment is that, for those cases meeting the above-mentioned criteria, capital gains taxation will only occur upon the actual transfer of the securities in question in the recipient entity that was acquired in exchange for the contribution, and not at the time of the contribution of the domestic or foreign securities, explain the Ecovis experts.

This new measure is a very welcome development that is expected to make setting up Greek holding companies an even more attractive and tax-efficient investment vehicle for high net-worth individuals.

For further information please contact:

Dimitrios Leventakis, Managing Partner, Certified Internal Auditor – IBFD Certified Tax Advisor, ECOVIS HELLAS Ltd., Athens, Greece
Email: dimitrios.leventakis@ecovis.com

DORA NIS2: New changes in the law should ensure more cyber security across the EU

07.06.2023

On 10 November 2022, the European Parliament passed two legal acts: The EU’s Digital Operational Resilience Act (DORA) and the Directive on measures for a high common level of cybersecurity across the Union (NIS2). EU Member States should implement the NIS2 measures from 18 October 2024, and DORA will apply directly from 17 January 2025. Both are expected to drastically change the cybersecurity landscape of the European Union (EU). ECOVIS ProventusLaw knows the details and the impact on companies.

What are the new legislations about?

The NIS2 Directive aims to create a common level of cybersecurity within the EU, repealing the current NIS Directive and creating the baseline for security requirements. NIS2 introduces standardised requirements for appropriate and proportional technical, operational, and organisational measures.

NIS2 will bring in new requirements within 3 areas: cyber strategy and governance, detection and management of security incidents, infrastructural and application security.

DORA, which is part of the digital finance package, aims to meet the growing IT security and cyber risks in the financial sector and the insurance industry. It is part of a package of measures aimed at guiding and supporting the digitalisation of the financial sector. In simple terms, under the regulatory framework of DORA, financial entities, and ICT service providers will now have to ensure that they can withstand, respond to, and recover from all types of ICT-related disruptions and threats, as well as prevent and mitigate cyber threats.

DORA introduces harmonised requirements for the security of network and information systems in financial entities in 4 main areas: ICT risk management, ICT-related incident management classification and reporting, digital operational resilience testing, managing ICT third party risks.

We can support you in correctly implementing the new DORA and NIS2 regulations in your company.

Loreta Andziulytė, Attorney at Law, Partner, ECOVIS ProventusLaw, Vilnius, Lithuania

Which companies do the new changes apply to?

• NIS2: One of the most significant changes introduced with NIS2 is its extended scope. It will apply to all entities which provide their services or carry out their activities in the EU or match the description of either an “essential” or an “important” entity in a defined list of sectors: telecoms, cloud computing, managed services, data centres, banking, transport, public administration, social media platforms and search engines, postal and courier services.
• DORA: DORA will apply to a wide range of financial entities including, but not limited to, credit, payment and electronic money institutions, crypto asset service providers, insurance and reinsurance companies. The new requirements will collectively apply to 21 different categories of financial entities and IT and communications service providers, such as cloud and software providers.

What will be the consequences of non-compliance?

Under NIS2, non-compliance can lead to administrative fines and suspension of services. CEO’s and heads of legal may be temporarily prohibited from discharging their managerial functions. In the case of essential entities, the infringement of certain obligations may be subject to administrative fines of a maximum of at least EUR 10,000,000 EUR or 2% of the total worldwide annual turnover in the preceding financial year of the business to which the respective entity belongs, whichever is higher. In the case of important entities the fines can be a maximum of at least EUR 7,000,000 or 1.4 % of the total worldwide annual turnover as above.

DORA does not foresee the size or form of sanctions. However, EU member states are free to provide for sanctions and breaches of DORA in their national law.

How to prepare for NIS2 and DORA

The Ecovis advisers strongly advise that companies review the scope of both NIS2 and DORA and assess whether they will be affected. If this is the case, then preparations should begin as soon as possible.

For further information please contact:

Loreta Andziulytė, Attorney at Law, Partner, ECOVIS ProventusLaw, Vilnius, Lithuania
Email: loreta.andziulyte@ecovisproventuslaw.com