Practical Law Global Guide: 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.
1. What is the general business, economic and cultural climate in your jurisdiction?
Ireland is a small, open economy which benefits from a qualified labour force, membership of the EU, a strong and stable legal and policy environment and a favourable business climate.
Export orientated sectors are the main industries in Ireland (e.g. pharmaceutical goods and health devices, ICT, food and beverage products).
Population and language
The population of Ireland is just under 5 million and English-speaking.
2. What are the key recent developments affecting doing business in your jurisdiction?
Key business and economic events
COVID-19 had an asymmetric impact on the Irish economy. The domestic sectors were adversely impacted but the export-orientated IT and pharmaceutical sectors (mainly due to the presence of large multinationals) grew in 2020, resulting in positive overall GDP growth for 2020. Aggregate tax receipts fell by only 3.6 per cent in 2020. This was attributable to two factors – the stability of income tax receipts, and a continuing strength in corporation tax revenues.
A swift policy response has mitigated the impact of the pandemic, but there have been significant fluctuations in unemployment since early 2020 which reflect the impact of the tightening and loosening of public health restrictions on business. Government expenditure on welfare payments and in the health sector increased. The Government has gradually relaxed public health restrictions since Q2 2021 and there has been widespread take-up of vaccinations which should see the Irish economy increasingly open for business. Irish exporting firms are also expected to benefit from a post-COVID international recovery.
Irish banks have strong capital levels but downward pressure on net interest margins due to the low interest rate environment and a high level of legacy non-performing loans (NPLs) on bank balance sheets have weakened profitability. The NPL ratio has reduced significantly in recent years due to portfolio sales and improved economic conditions, but remains high compared to European peers.
Brexit: the UK officially left the EU on 31 January 2020. Following the end of a transition period on 31 December 2020, the UK now trades with the EU on the terms of the Trade and Cooperation Agreement signed on 30 December 2020. However, not all aspects of the trade deal are fully in force at present and the pathway of trade between the UK and Ireland throughout 2021 and beyond will likely be affected by the manner and timing of the trade deal’s further implementation by both the EU and the UK.
Ireland’s corporation tax rate is 12.5%. As recently as 2020, the Minister for Finance reiterated Ireland’s commitment to this rate in his annual Budget speech. Since then, on 21 July 2021, at the OECD/G20 Inclusive Framework meeting on Base Erosion and Profit Shifting (“BEPS”), agreement was reached by a majority of member jurisdictions on proposals (known as Pillar One and Pillar Two) for, among other matters, a minimum global tax rate of 15%.
Ireland has indicated that it fully supports the Pillar One proposals to re-allocate a proportion of taxing rights to market countries, which is universally seen as an important step towards adapting the international tax framework to respond to the digitalisation of the economy.
Equally, Ireland has expressed broad support for the agreement on the Pillar Two proposals on a minimum global tax rate.
However, Ireland has not to date signalled its agreement with the 21 July 2021 proposals and has expressed some concerns regarding the proposed global minimum effective tax rate of 15%. Ireland’s existing 12.5% corporation tax rate has been in place for over two decades and is viewed as an important part of our economic policy in terms of attracting investment and employment.
It remains to be seen if the Minister for Finance will make any further statement on Ireland’s position on corporate tax rate in his Budget speech this year, which is scheduled for 12 October 2021.
The Companies (Rescue Process for Small and Micro Companies) Act 2021 provides an alternative to examinership (a process similar to Chapter 11 in the US), for the benefit of small and micro companies, which is more accessible and cost efficient than the existing examinership process and can be concluded in a shorter period of time. The Act was signed into law on 22 July 2021, but had not yet been commenced at the time of writing.
The recent publication of the Companies (Corporate Enforcement Authority) Bill 2021 paves the way for the establishment of a new independent statutory authority, the Corporate Enforcement Authority (“CEA”), tasked with investigating and prosecuting economic and white collar crime in Ireland. The CEA will replace the Office of the Director of Corporate Enforcement and assume its role in the investigation and enforcement of corporate crime. The Irish Government has indicated that it is intended to have the CEA operational by 1 January 2022.
As part of the OECD BEPS project, there have been a number of changes to international tax law and practice. The Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (MLI) implements the tax treaty measures developed during the BEPS project. Ireland’s domestic ratification procedures were completed in the Finance Act 2018. Ireland deposited its instrument of ratification and final list of reservations and notifications with the OECD Depositary on 29 January 2019. The MLI entered into force for Ireland on 1 May 2019.
Furthermore, all EU member states adopted Directive (EU) 2016/1164 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (Anti-Tax Avoidance Directive). The Anti-Tax Avoidance Directive requires EU member states to implement domestic legal frameworks and common measures to tackle tax avoidance practices. The Directive lays down controlled foreign corporation (CFC) rules, an exit tax, rules regarding anti-hybrid mismatches within the EU and with third countries, general interest limitation rules, and a general anti-abuse rule. The required exit tax and CFC rules were implemented in Ireland with effect from 10 October 2018 and 1 January 2019, respectively. The anti-hybrid rules came into effect from 1 January 2020. Ireland is expected to introduce an Interest Limitation Rule (ILR) with effect from 1 January 2022, as well as implementing the anti-reverse hybrid rules.
The Companies (Miscellaneous Provisions) (Covid-19) Act 2020 was originally commenced on 21 August 2020 and introduced temporary amendments to Irish company law required to address issues arising from the impact of the Covid-19 pandemic. For example, its provisions allow for general meetings of shareholders of meeting of creditors to be held virtually, for the company seal to be affixed to a separate counterpart of a document which is required to be executed under seal, an extension to the time allowed for the examinership process, among other things. The application of this legislation has most recently been extended to 31 December 2021.
3. What is the general legal system in your jurisdiction?
Ireland’s legal system is based on common law. Ireland is a unitary system (i.e. not federal).
4. Are there any restrictions on foreign investment, ownership or control?
There are generally no restrictions on foreign investment in Ireland. The government encourages foreign investments and the tax regime is particularly favourable.
EU Regulation 2019/452 (the “FDI Screening Regulation”) is directly applicable in Ireland and came into effect on 11 October 2020. Ireland is not required to screen foreign investment under this regulation, but there are indications that the government may introduce new legislation in this area. Ireland is however subject to certain obligations under the FDI Screening Regulation (e.g. sharing information on relevant transactions with the European Commission and other member states where requested to do so). The Department of Enterprise, Trade and Employment held a public consultation on Ireland’s implementation of the FDI Screening Regulation in May 2020. The Government has listed a proposed Investment Screening Bill in its Summer Legislative Programme which signals an intention to develop an investment screening mechanism to empower the Minister for Enterprise, Trade and Employment to assess, investigate, authorise, condition, prohibit or unwind foreign investments from outside of the EU, based on a range of security and public order criteria.
Authorisations from regulatory bodies are required in certain sectors, including banking, financial services and telecommunications. These authorisations apply to foreign and domestic investors alike.
5. Are there any restrictions or prohibitions on doing business with certain countries, jurisdictions, entities, organisations or individuals?
As Ireland is a member of the EU 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 licences.
The EU implements sanctions, also known as “restrictive measures”, autonomously at an EU level, or as a result of binding resolutions of the Security Council of the United Nations. The sanctions may include economic measures such as restrictions on imports and exports, asset freezes, arms embargoes and restrictions on admission (travel bans) and these may target governments of third countries, or non-state entities and individuals (such as terrorist groups and terrorists). The sanctions are given effect as EU Council Regulations which are binding on all Member States once published in the EU Official Journal and must be complied with in Ireland as though they were contained in Irish legislation.
Penalties for the breach of such EU Regulations are prescribed through the enactment of statutory instruments in Ireland under the European Communities Act 1972, the Financial Transfers Act 1992 and the Criminal Justice (Terrorist Offences) Act 2005 as amended. A list of the orders currently in force can be viewed on the Irish Statute Book.
6. Are there any exchange control or currency regulations or any registration requirements under anti-money laundering laws?
There is no exchange control or currency regulation in Ireland.
The Minister for Finance can restrict financial transfers between Ireland and certain non-EU countries, provided the restriction conforms with EU law (see Question 5).
The European Union (Anti-Money Laundering Beneficial Ownership of Corporate Entities) Regulations 2019 require Irish companies and other bodies corporate to obtain and keep adequate and accurate information on their beneficial ownership in a beneficial ownership register. An individual is considered a “beneficial owner” under these regulations if they ultimately own or control the entity.
Irish companies need to file information on their beneficial owners (e.g. name, date of birth, nationality, residential address and Irish Personal Public Service Number (if applicable)) with the Register of Beneficial Ownership maintained by the Registrar of Companies. A relevant entity must grant access to its beneficial ownership register if required by An Garda Síochána (Irish police force), the Revenue Commissioners, the Central Bank of Ireland, the Department of Justice & Equality, the Criminal Assets Bureau or a competent authority. The general public have restricted access to this register (e.g. they cannot access a beneficial owner’s day of birth or address).
Similarly, the European Union (Anti-Money Laundering: Beneficial Ownership of Trusts) Regulations 2021 require trustees of certain express trusts to compile and maintain an internal beneficial ownership register. Trustees must then file and update this information in the Central Register of Beneficial Ownership maintained by the Irish Revenue Commissioners.
Anti-money laundering laws
The Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010 to 2021 sets out the offence of money laundering, making the engagement in certain acts in relation to property that is the proceeds of criminal conduct while knowing or believing or being reckless as to whether the property is the proceeds of criminal conduct a crime.
There is a requirement on certain businesses, or “designated persons” to do appropriate due diligence to identify their customer, and ensure that money transacted in the business relationship was lawfully obtained. A designated person must identify its customer and verify their identities against formal documentation or official information. Further enhanced due diligence is required when the customer is engaged with another credit institution outside of the EU, where the customer is a “politically exposed person”, where the customer is a resident of a high-risk third country, or where there is a situation where a high-risk customer is identified and there is a suspicion of money laundering or terrorist financing.
These obligations extend beyond “knowing your direct client”. A designated person is required to examine whether there is an entity enjoying beneficial ownership of the assets being passed, and whether that entity adequately satisfies the appropriate due diligence.
7. What grants or incentives are available to investors?
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.
Enterprise Ireland is an Irish state agency responsible for supporting the development of manufacturing and internationally traded services companies. Enterprise Ireland provide a range of funding and supports available to companies at varying stages of development. For more information on grants and supports available from Enterprise Ireland, see: Home – Enterprise Ireland (enterprise-ireland.com).
A number of intellectual property (IP) incentives have been introduced into Irish tax legislation in recent years:
- Relief in relation to the acquisition of specified intangible assets (which includes patents, copyright, and trade marks). The relief is given by means of a capital allowance deduction available against trading income that is derived from:
- activities that consist of the managing, developing or exploiting of IP;
- activities that comprise the sale of goods and services that derive the greater part of their value from the IP.
- Following changes introduced in the Finance Act 2017, in respect of IP acquired on or after 11 October 2017, the amount of the capital allowance deduction which may be offset in any accounting period against trading income of the relevant trade in which the intangible assets are used, is capped at 80%. Any excess capital allowances can be carried forward indefinitely or set off against future profits.
- Refundable 25% research and development (R&D) tax credit for expenditure on qualifying R&D undertaken by an Irish taxpayer in the EEA which can provide an overall effective corporation tax deduction of 37.5% for qualifying R&D expenditure.
- OECD compliant IP box regime known as the Knowledge Development Box (KDB) which provides for an effective 6.25% rate of corporation tax on profits of Irish resident companies which arise from qualifying assets. For KDB purposes, “qualifying assets” includes patents and copyrighted software which are developed as the result of R&D activities undertaken by the Irish taxpayer and, in respect of smaller companies, IP that is similar to an invention which could be patented provided the IP has received the required certification.
The Irish Government encourages foreign investments and the tax regime is particularly favourable.
IDA Ireland is a state agency established to encourage investment into Ireland by foreign-owned companies. For full information on the range of business supports available from IDA Ireland, see Foreign Direct Investment (FDI) – Invest in Ireland – IDA Ireland.
8. What are the most common forms of business vehicle used in your jurisdiction?
Main business vehicles
- Private limited companies with a share capital (LTD).
- Designated Activity Company (DAC) – this company type can be limited by shares or limited by guarantee.
- Public limited companies.
- Other company types include: private unlimited companies, public unlimited companies, companies limited by guarantee and societas europaea.
Most commonly used vehicle
The most common form of business vehicle used by foreign companies is a private limited company (LTD). 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 because fewer obligations apply to a private company and the restrictions applicable to a private company (e.g. restrictions on number of shareholders) do not generally concern a foreign investor.
Irish branch of a foreign company
A foreign company can trade directly in Ireland by establishing an Irish branch and registering in Ireland as an “external company”. The external company will be subject to compliance with certain requirements and filing obligations. The Irish branch is not a separate legal entity from the external company which established it.
Another form of business vehicle is the partnership model, which is the default method of carrying on business between two or more persons (including corporate entities) in Ireland. A general partnership can exist without formal registration and partners have unlimited liability. A partnership in Ireland does not have separate legal personality from its partners.
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. Limited partners are not permitted to participate in the management of the partnership and may risk losing their limited liability status if they breach this obligation. The primary advantages of a partnership include: tax transparency; flexibility to adopt bespoke management/governance structures and they are not subject to Irish company law.
An Investment Limited Partnership (ILP) may be established under the Investment Limited Partnerships Act 1994 (as amended). The structure may only be used by alternative investment funds (AIFs) and their managers and the ILP is regulated by the Central Bank of Ireland. As such, it is a suitable vehicle for funds pursuing private equity, private credit, infrastructure, real asset and similar investment strategies.
9. What are the main formation, registration and reporting requirements for the most common corporate business vehicle used by foreign companies in your jurisdiction?
An LTD may be incorporated by filing a form A1 (which contains details of the company’s name, registered office, principal activity, directors and secretary and its subscribers and their shares) and a copy of it constitution (i.e. bye laws) with the Companies Registration Office (CRO) which will then issue a certificate of incorporation. The CRO may reject the incorporation if the proposed company name is too similar to that of an existing company. It is possible to reserve a company name for up to 28 days for a small fee.
The incorporation of an LTD generally takes ten working days or five working days under the quick incorporation scheme, where the company’s constitution is in a form approved by the CRO. Further information may be found at: CRO – Company Incorporation (Irish Government website).
Periodical reporting. An LTD must select an annual return date on which it will need to file its annual return with the CRO each year setting out details of its officers, members, and share capital as at the annual return date. The LTD will also need to append a copy of its financial statements (audited where required).
An Irish subsidiary company may file the consolidated financial statements of an EEA parent instead of its own financial statements in circumstances where the parent has given an irrevocable guarantee in respect of that subsidiary’s liabilities (which includes any commitments) and certain other conditions are met.
Irish branches of foreign companies are also obliged to file financial statements (of the foreign company) with the CRO.
Ongoing reporting. LTDs must inform the CRO of certain matters within a specified timeframe of their occurrence including:
- Updates to the company’s constitution.
- Changes of registered office.
- Changes to the directors and secretary.
- Details of allotments of shares.
- Details of any changes to its share capital.
See Question 6 for information on reporting requirements in respect of beneficial ownership of corporates.
10. What is the standard management structure and key liability issues for the most common form of corporate business vehicle used by foreign companies in your jurisdiction?
Private Limited Companies (LTDs) must have a secretary and at least one director. If only one director is appointed, the secretary and director cannot be the same person. All other company types must have a minimum of two directors. A body corporate cannot act as a director of an Irish company.
At least one director of the company must be resident in a member state of the European Economic Area (EEA), unless the company obtains a prescribed bond to the value of EUR25,000 as security for compliance with Irish company and tax law.
Directors’ and officers’ liability
The director(s) are responsible for managing the business of an Irish company and are subject to a range of statutory duties and obligations under the Companies Act 2014. That act sets out a non-exhaustive list of statutory fiduciary duties which are owed to the company:
- Act in good faith and in the interests of the company;
- Act honestly and responsibly in relation to the conduct of the affairs of the company;
- Act in accordance with the constitution and exercise powers only for purposes allowed by law;
- Not misuse the company’s property, information or opportunities;
- Not fetter independent judgment;
- Avoid conflicts of interest;
- Carry out their functions with due care, skill and diligence; and
- Have regard to all interests of members and employees.
Breach of fiduciary duty may result in personal liability for a director to the company.
Directors have additional statutory duties in relation to the disclosure of certain information, maintaining adequate accounting records and ensuring the director and the company comply with obligations under the Companies Act 2014.
The Companies Act 2014 contains a number of provisions which provide for personal liability of directors. A director may be subject to restriction orders, disqualification orders, fines, imprisonment or injunctions depending on the nature and extent of their failure or perceived breach. A director can also be liable in tort for negligent behaviour.
Irish company law also prescribes a range of sanctions against directors for other defaults and offences provided for under the Irish Companies Act 2014 which can include “on the spot” fines and/or criminal liability.
Directors also have other sources of obligations, including under health and safety legislation, employment law, environmental law and data protection legislation.
Parent company liability
Parent companies are generally not liable for acts of subsidiaries because each company has separate legal personality from its shareholders (unless, for example, a parent company guarantees a loan or the subsidiary is an unlimited company).
11. What are the main environmental regulations and considerations that a business must take into account when setting up and doing business in your jurisdiction?
The Environmental Protection Authority (EPA) authorises activities above certain thresholds prescribed by statute by way of an industrial emissions licence, an integrated pollution control licence (Environmental Protection Agency Acts (1992 to 2011)) or a waste licence (Waste Management Acts (1996 to 2011)). Other regulated activities which would require verification of relevant authorisations include:
- Storage of dangerous substances (regulated by the Seveso III Directive (2012/18/EU)).
- Storage of dangerous chemicals (regulated by the Health and Safety Authority).
- Emissions to water below a certain threshold (local authority).
Typically, the offence of “causing or permitting” something in an environmental statute is a strict liability offence. This can encompass a failure to take reasonable steps to prevent the offense.
Following the commission of an environmental offence, not only is the person who caused or permitted the environmental offence civilly and criminally liable for it, the directors, officers and managers of a corporate body (such as a company) may also be liable.
There is an obligation on persons, holding, treating or otherwise in control of waste to ensure that waste management is carried out without:
- endangering human health;
- harming the environment;
- being a risk to water, air, soil, plants or animals;
- causing nuisance through noise or odours;
- adversely affecting the countryside or places of special interest.
Failure to comply with the above obligations is an offence.
Different rules apply to waste considered “hazardous”, the definition of which changes often in the Waste Management Acts 1996 (1996 to 2011). If historic waste becomes defined as hazardous, it is advisable to keep proper records of proof of delivery to authorised facilities to ensure that former waste holders can demonstrate that the waste was correctly dealt with. Both the regulator and the waste holder should be able to track hazardous waste through its entire lifecycle.
The primary obligation on the occupier of any premises (other than a private dwelling house) is to use the best practicable means to limit and, if possible, prevent an emission of an air pollutant from such premises.
General criminal offences under the Air Pollution Acts (1987 to 2011) include:
- Not having (or complying with) a licence to discharge air pollutants when a licence is required.
- Causing or permitting the emission of air pollutants.
- Not using the best practicable means to prevent or minimise emissions.
- Not reporting polluting or potentially polluting incidents as soon as practicable.
It is an offence to cause water pollution. “Polluting matter” is defined as, matter the entry or discharge of which into any waters is liable to:
- Render those or any other waters poisonous or injurious to fish, spawning grounds or the food of any fish.
- Injure fish in their value as human food.
- Impair the usefulness of the bed and soil of any waters as spawning grounds or their capacity to produce the food of fish.
- Render waters harmful or detrimental to public health for domestic, commercial, industrial, agricultural or recreational uses.
General criminal offences under the Local Government (Water Pollution) Acts (1977 to 2007), Inland Fisheries Acts (1959 to 2017) and Water Services Acts (2007 to 2017) include:
- Not having or complying with a required licence to discharge water pollutants.
- Causing or permitting any polluting matter to enter waters.
- Discharging, or causing or permitting the discharge, of trade or sewage effluents to waters or a sewer without a licence, or not in accordance with a licence.
Environmental Liability Regulations
The Environmental Liability Directive (2004/35/EC) has been transposed in Ireland by the European Communities (Environmental Liabilities) Regulations 2008.
General criminal offences under the Environmental Liability Regulations include:
- An operator of an occupational activity failing to take preventative measures when there is an imminent threat of environmental damage, where he or she is aware of the imminent threat or ought to have reasonably been aware of it.
- An operator of an occupational activity failing to notify the EPA without delay when there is an imminent threat of environmental damage where he or she is aware of the imminent threat or ought to have reasonably been aware of it.
- An operator failing to take all practicable steps to immediately control, contain, remove or manage contaminants or causes of damage where he or she is aware, or ought reasonably to be aware, that to do so would prevent further environmental damage, damage to human health or further impairment of services.
- An operator failing to comply with any notice or direction issued to him or her.
- Obstructing or failing to comply with An Garda Síochána or an authorised officer in exercising their powers under the Environmental Liability Regulations.
Land use must have the appropriate permission under the Planning and Development Acts (2000-2021) for its current or intended use. Where property is awaiting development, the nature of the permission and its duration for development purposes must be examined.
Unauthorised development (which includes unauthorised use of a property) is an offence, which can result in criminal liability for both a corporate body and its officers.
Employment: Laws, contracts and permits
12. What are the main laws regulating employment relationships?
Employment protection laws in Ireland apply to all employees working in Ireland, irrespective of the employee’s nationality. Whether these laws apply to Irish employees working abroad depends on the:
- Employment contract.
- 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 fundamental issue is where the employee habitually carries out their 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:
- Constitution of Ireland 1937.
- Irish statutes and EU law.
- Judicial precedents.
- Common law (including contract law).
- Statutory mechanisms put in place by the state to regulate certain sectors, including:
- Sectoral Employment Orders (SEOs) which require acceptance by the Minister of State at the Department of Business, Enterprise and Innovation following a recommendation from the Labour Court;
- health and safety;
- redundancy payments;
- transfers of undertakings;
- collective bargaining agreements; and
- custom and practice in the workplace and workplace or industry rules.
The primary legislation regulating employment relationships include the:
- Unfair Dismissals Acts 1977-2015.
- Employment Equality Acts 1998-2015.
- National Minimum Wage Act 2000 – 2015.
- Payment of Wages Act 1991.
- Terms of Employment (Information) Acts 1994-2014.
- Maternity Protection Acts 1994-2004 and other protective leave legislation.
- Minimum Notice and Terms of Employment Acts 1973-2005.
- Protection of Employees (Fixed Term Work) Act 2003, Protection of Employees (Part-Time Work) Act 2001 and Protection of Employment (Temporary Agency Work) Act 2012.
- Organisation of Working Time Act 1997.
- Protection of Young Persons (Employment) Act 1996.
- Industrial Relations (Amendment) Acts 2004 and 2015.
- Redundancy Payments Acts 1967-2014.
- Protection of Employment Acts 1977-2015.
- Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007.
- Employment Permits Acts 2003 – 2020 and Employment Permits (Amendment) Regulations 2018.
- Protected Disclosures Act 2014.
- Safety, Health and Welfare at Work Act 2005.
13. Is a written contract of employment required?
Under the Terms of Employment (Information) Acts 1994 to 2014, employers must provide employees with a written statement of certain terms and conditions of employment within two months of starting employment. This written statement of terms must contain:
- the full names of the employer and the employee;
- the address of the employer
- the place of work
- the job title
- the commencement date, expected duration of the contract (if temporary) and the expiry date (if fixed-term);
- reference to any registered employment agreement or employment regulation order that applies to the employee;
- the rate of calculation of the employee’s remuneration;
- details stating that the employee may request a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section;
- the length of the intervals between the times at which remuneration is paid;
- any terms or conditions relating to the hours of work, paid leave, incapacity for work owing to sickness or injury, paid sick leave, pensions and pensions schemes
- the period of notice the employee is required to give and entitled to receive to determine the employee’s contract of employment or the method for determining such periods of notice; and
- a reference to any collective agreements that directly affect the terms and conditions of the employee’s employment.
If an employer does not comply with this requirement, employees are entitled to up to four weeks’ compensation.
Since March 2019, the Employment (Miscellaneous Provisions) Act 2018 provides that employers are also required to provide employees with key terms and conditions of employment within five days of starting employment. These include:
- the full name of the employer and the employee;
- the address of the employer
- the expected duration of the contract (where the contract is temporary or fixed-term);
- the rate or method of calculating pay; and
- what the employer reasonably expects the normal length of the employee’s working day and week will be.
If an employer does not comply with this requirement, it will be guilty of an offence and liable for a fine of up to €5,000 or a term of imprisonment of up to 12 months, or both. Employees with one month’s service may claim up to four weeks’ compensation for this breach.
Many employers therefore choose to put a detailed written contract of employment in place.
An employment contract includes both its express written terms and implied terms. Terms are implied by:
- Statute (e.g. the Payment of Wages Act 1991 which provides certain rights for all employees in relation to the payment of wages and prevents employers making unlawful deductions from employees’ salaries).
- Common law (e.g. the employer’s duty of care and the employee’s duty of fidelity).
- Custom and practice in the workplace or industry (e.g. sick pay and overtime procedures).
The employee and employer can agree terms and conditions individually or through collective bargaining. A collective agreement is made by or on behalf of an employer and a representative trade union which governs conditions of employment and payment of employees. As noted above, a reference to any collective agreements that directly affect the terms and conditions of the employee’s employment must be included in the written statement given to an employee within two months of starting employment.
14. Do foreign employees require work permits and/or residency permits?
Anyone travelling to Ireland for business purposes must have permission to (i) enter Ireland; (ii) conduct business activities (including working on a long-term basis); and (iii) if relevant, reside in Ireland. These three elements of immigration are governed by different rules and in some cases, the permissions are administered by different departments.
Nationals from non-exempt countries must obtain an entry visa before travelling to Ireland. Details of exempt and non-exempt countries can be obtained from the Department of Foreign Affairs and Trade (www.dfa.ie). Possession of a valid visa is essential for visa-required nationals, but it simply allows you to present to an immigration office at the point of entry. An entry visa does not confer an automatic right to entry (which is subject to the immigration officer) or 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 and residency requirements after obtaining an employment permit. The process for applying or renewing visas has been impacted by COVID-19 restrictions, with much of the process moving online.
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 to 2014 establish a statutory regime governing employment permits which is operated by the Department of Business, Enterprise and Innovation (www.dbei.ie). There are three primary types of permit, that is, (i) Critical Skills Employment Permits, (ii) General Employment Permits and (iii) Intra Company Transfer Permits.
The Employment Permits Act 2014 and Employment Permits Regulations 2017 have updated and improved the current employment permits regime.
Critical Skills Employment Permits (“CSEPs”)
Applications for a CSEP are designed to attract highly skilled people into the Irish labour market. Applications can be made in respect of two categories of occupation, based on salary level:
- Where the gross annual salary (excluding bonuses) on offer is €64,000 or more, and the applicant holds a third level degree or equivalent experience to the relevant, the critical skills employment permit is available for all occupations, other than those which are contrary to the public interest or listed in the Ineligible Categories of Employment, available on the Department of Enterprise, Trade and Employment (www.enterprise.gov.ie).
- CSEPs are also available for gross annual salaries in the range of €32,000 – €63,999 (excluding bonuses) for a restricted number of strategically-important occupations which are listed on the Highly Skilled Occupations List, available on the Department of Enterprise, Trade and Employment (www.enterprise.gov.ie). This list is subject to updates and amendments. Applicants are also required to hold a Degree qualification or higher.
Employees must be offered a position with the Irish entity for at least 2 years as an initial basis. A CSEP is valid for the two year period after which the employee may apply for Stamp 4 permission in Ireland which will allow them to live and work in Ireland without requiring an employment permit.
The 50/50 rule applies which means that at least 50% of employee count must be EEA nationals (please note that post-Brexit UK nationals are included in the EEA employee count for the purposes of the rule).
Holders of a critical skills employment permit are entitled to apply for 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 their critical skills employment permit. Since 6 March 2019, the Immigration Delivery Service will grant eligible spouses and de-facto partners of CSEP holders permission to reside on Stamp 1 Conditions which provides direct access to the labour market without the need to obtain an employment permit.
The critical skills employment permit has been amended by both the Employment Permits (Amendment) Regulations 2018 which came into operation on 26 March 2018 and the Employment Permits (Amendment) (No. 2) Regulations 2018 which came into operation on 21 May 2018. These Regulations altered the maximum number of permits that may be granted for certain types of employment, set out new documentary requirements for applicants and amended the list of employments in which an employment permit will not be granted.
The processing fee for CSEP is €1,000 for a 2 year permit. However, this may be subject to change.
General Work Permits (“GEPs”)
GEPs are available for occupations with a salary of €30,000 or more (in exceptional cases, applications for occupations with annual salaries of €30,000 will be considered). In order to achieve the minimum remuneration threshold of a GEP the following components are deemed to be remuneration:
- Basic salary and any top up salary allowance required to bring current salary (if less than the Irish National Minimum Wage; and
- Any health insurance benefits.
GEPs are issued for an initial period of two years and can then be renewed for a further three years. After five years, the employee may apply to the Immigration Delivery Service for long-term residency, which will enable the applicant to reside in Ireland and to work without the need for an employment permit.
A Labour Market Needs Test must be complied with by the employer and the non-EEA employee. This test is to demonstrate that the position could not have been filled by an EEA National and is done by advertising the position in line with State requirements. Similarly to CSEPs, the 50/50 rule will apply.
General Employment 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, and applicants must be able to demonstrate their ability to support any financial dependents.
The processing fee for a new GEP is €500 for an employment permit of 6 months or less duration or €1,000 for an employment permit from 6 months up to 24 months duration. This is, however, subject to change.
Intra-company transfer (“ICT”) Permits
ICT 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 €40,000 (trainees must earn a minimum of €30,000) and the employee must remain on the foreign payroll;
- the employee worked for a minimum period of six months with the overseas company prior to transfer (one month where the employee is a trainee);
- the ICT permit is strictly for assignments of a temporary nature and therefore, applications may be granted for a maximum period of up to 2 years in the first instance and may be extended upon application to a maximum stay of 5 years. After this time, the holder must return to their home country;
- the foreign branch in question must be bona fide and engaged in substantive business operations in the foreign country in question;
- the Irish company must have a direct link with the overseas company by common ownership e.g. either one company must own the other, or else both must be part of a group of companies controlled by the same parent company. Documentary evidence of this link may be required. The Irish company must be trading and engaged in substantive business operations; and
- the employee must fall into one of the categories of senior management, key personnel or trainee.
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 €500 to €1,500.
Right to Reside
For EU citizens, Article 45 of the Treaty on the Functioning of the European Union provides for the rights of EU citizens to move and reside freely within the territory of EU Member States. The conditions attaching to these rights for EU citizens and any family members who accompany or join them are set out in detail in Directive 2004/38/EC. In Ireland, this is given effect by the European Communities (Free Movement of Persons) Regulations 2015.
For non-EEA nationals, Section 9 of the Immigration Act 2004 (as amended) sets out the legal requirements for non-EEA nationals to register with the immigration authorities in Ireland when staying in Ireland for more than 90 days. Employees who obtain a work permit must book an appointment with the Immigration Delivery Service to allow them to register with it on their arrival into Ireland.
Termination and redundancy
15. Are employees entitled to management representation and/or to be consulted in relation to corporate transactions (such as changes in control, redundancies and disposals)?
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 Employees (Provision of Information and Consultation) Act 2006. An employer may at its own initiative, or must at the request of 10% or more of the employees or at the direction of the Labour Court, enter into negotiations to establish such an arrangement. The employer must permit the employees to elect representatives concerning information and consultation processes within the organisation.
- Employees must be consulted on collective redundancies (Protection of Employment Acts 1977-2015, and Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007)). Whether collective redundancies arise depends on the number of proposed redundancies by reference to the size of the workforce of the organisation (see Question 17 below for further details).
- Where there is no change in the identity of the employer, the employee’ contracts continue as before the transfer. On the transfer of an undertaking, 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 reasonably practicable, and not later than 30 days before the transfer occurs, if either employer envisages measures concerning their employees.
- Where it has been agreed between the parties to consult on certain matters.
How is the termination of an individual’s employment regulated?
Termination and Fair Dismissal
An employer must have cause to dismiss an employee. Under the Unfair Dismissals Acts 1977 to 2015, the dismissal of an employee is not deemed to be unfair if it is for reasons of:
- the employee’s on-going employment is in contravention of statutory provisions; and
There is also a catch-all provision which 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 17).
The unfair dismissal legislation generally applies to all employees who have completed one year’s continuous service (including any notice entitlement). However, dismissals are automatically deemed to be unfair if they result wholly or mainly from the following:
- membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours;
- religious or political opinions;
- legal proceedings against an employer where an employee is a party or a witness;
- race, colour, sexual orientation, age or membership of the Traveller community;
- pregnancy, giving birth or breastfeeding, or any matters connected with pregnancy or birth;
- availing of rights under legislation to maternity leave, adoptive leave, paternity leave, carer’s leave, parental or force majeure leave;
- unfair selection for redundancy;
- making a protected disclosure under the Protected Disclosures Act 2014; and
- dismissal in the context of a transfer under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.
Under unfair dismissal legislation, the onus of proof is on the employer to justify the 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).
Statutory minimum notice
Under contract law and statute, an employer or employee wishing to terminate employment must give the other party notice of termination. An employer may dismiss an employee without notice for gross misconduct (i.e. summary dismissal). This is conduct that is so serious that immediate dismissal of the employee is warranted; for example, assault, stealing or serious breach of employment policies. Employment contracts may contain further examples of gross misconduct.
Employers must give employees the following statutory periods of notice:
- 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.
If the employee’s contract of employment provides for notice in excess of the statutory period, the contractual notice must be given. Payment in lieu of notice may be given if it is provided for in the contract of employment.
Where an employee alleges unfair dismissal, a claim can be brought before an Adjudication Officer of the Workplace Relations Commission.
The claim must be made within six months beginning on the date of the contravention in relation to which the complaint was made, but this can be extended to 12 months if an adjudicator is of the opinion that the delay was due to reasonable cause. The unfair dismissal regime operates separately to an employee’s right to bring a common law claim for wrongful dismissal before the civil courts (for example, for breach of contract). However, the employee cannot recover damages in both forums.
Remedies for unfair dismissal available to an employee include:
- Reinstatement to the same position as before the termination, with backdated pay.
- Re-engagement to the same or similar position as before the termination, with or without backdated pay.
- Compensation not exceeding 104 weeks’ gross remuneration or 4 weeks’ remuneration where no loss has been incurred.
In civil cases, the court will award damages in accordance with the usual principles, depending on the nature of the claim.
17. Are redundancies and mass termination regulated?
Redundancies are regulated by three primary pieces of legislation:
- Redundancy Payments Acts 1967 to 2014.
- Protection of Employment Acts 1977 to 2015.
- Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007.
Under the Redundancy Payments Acts 1967 to 2015, a statutory redundancy payment is payable to employees who have completed more than 104 weeks’ continuous service. In basic terms, statutory redundancy is calculated as two weeks’ pay for each year of service plus one additional week’s pay, capped at €600 per week.
It is open to employers to provide enhanced redundancy payments and this is generally in exchange for a waiver of the employee’s rights to bring legal claims.
In light of COVID-19, a suspension of redundancy provisions relating to temporary layoff and short-time work was introduced in March 2020. This has been extended until 30 September 2021. Before March 2020, if an employee was laid off or put on short time for four or more consecutive weeks, or six or more weeks within a 13-week period of which not more than three are consecutive, the employee was entitled to notify their employer in writing of their intention to claim a statutory redundancy payment (assuming they satisfied the qualifying criteria). On giving notice, an employee would be entitled to a statutory redundancy payment if their employer could not give them counter-notice within seven days of the employee’s notice.
A collective redundancy arises if over any 30 consecutive days, the number of employees being made redundant are:
- Five employees where 21 to 49 are employed;
- 10 employees where 50 to 99 are employed;
- 10% of employees where 100 to 299 are employed; and
- 30 employees where 300 or more are employed.
The Protection of Employment Acts 1977 to 2015 prescribes the procedures to be followed in a collective redundancy. This includes employee representation and a mandatory consultation process. These consultations must take place at the earliest opportunity and at least 30 days before the notice of redundancy is given. The consultation aims to consider whether there are any alternatives to the redundancies.
The employer is obliged to provide certain information regarding the redundancies in writing to the employee representatives. The employer must also inform the Minister for Employment Affairs and Social Protection in writing of the proposed redundancies at least 30 days before the occurrence of the first redundancy.
Tax: Taxes on employment
18. In what circumstances is an employee taxed in your jurisdiction?
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 individual is not regarded as resident for any tax year in which he spends 30 days or less in Ireland.
A “day” in this context means any part of a day.
19. What income tax, social security and other tax or contributions must be paid by the employee and the employer during the employment relationship?
Tax resident employees
Income tax. Employees are liable to income tax on their worldwide annual taxable income at:
- 20% on the first EUR35,300.
- 40% 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 at rates varying from 0.5% to 8%, 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.
Filing requirements. Pay-as-you-earn (PAYE) is the administrative method of collecting tax from employment income. The obligation is on the employer to ensure that the appropriate amount of tax is deducted from the employee’s pay and paid to the Irish Revenue Commissioners.
Non-tax resident 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 27).
If an employee is not resident in Ireland and they do not perform duties in Ireland, there is no liability to pay Irish tax.
Temporary assignees to Ireland from an EU member state, or a country with which Ireland has a social security 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 a rate of 11.05% for employers.
It is the responsibility of the employer to deduct the correct amount of tax from the employee’s pay through the PAYE system and to pay this to the Irish Revenue Commissioners.
20. When is a business vehicle subject to tax in your jurisdiction?
Tax resident business
Companies incorporated in Ireland are generally considered resident in Ireland unless a double tax agreement regards the company as resident in a territory other than Ireland. Ireland’s double tax agreements contain tie-breaker provisions to resolve cases where a company may be considered resident of both Ireland and another territory. Where an entity is a resident of both states it will normally be deemed resident in the state in which it is effectively managed. The MLI may cause this tie-breaker provision to be replaced by a competent authority determination in some treaties.
A non-Irish incorporated company may also be tax resident in Ireland if it is centrally managed and controlled in Ireland. The test is a factual test which is generally directed at the highest level of control of the business of the company.
Non-tax resident business
Non-resident companies that trade through a branch or agency in Ireland are subject to corporation tax on branch profits. Non-resident companies must pay income tax on other Irish source income, subject to any relief provided by a double tax treaty (see Question 27). See also Question 21 in relation to Capital Gains Tax.
Irrespective of residence, companies may be liable to pay stamp duty, if an instrument is executed in Ireland, or if an instrument is executed outside Ireland, but relates to property situated in Ireland or something to be done in Ireland.
22. What are the main taxes that potentially apply to a business vehicle subject to tax in your jurisdiction?
Companies that are resident in Ireland must pay corporation tax on worldwide profits and chargeable 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% or 6% on share transfers, up to 2% on residential property, and 7.5% on non-residential property transfers). Certain transactions are exempt from stamp duty (for example, transfers of intellectual property).
A new stamp duty rate of 10% was introduced in 2021 where ten or more residential properties (generally houses) are acquired on a cumulative basis over a 12 month period. This rate is also applicable to certain transactions in respect of shares in a company, units in a fund or partnership interests where value is derived from residential property.
Capital gains tax
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 certain conditions are met including the following:
- Subsidiary is resident in Ireland, the EU or a treaty state.
- Subsidiary is a trading company or part of a trading group.
- 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.
Non-resident companies may be subject to capital gains tax on the disposal of certain Irish assets including Irish land and buildings (or shares deriving their value therefrom) and assets of an Irish branch or agency of the company.
22. How are the following taxed:
- 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 a rate of income tax (currently 25%), unless both:
- An exemption applies (for example where the recipient of the dividend or distribution is resident in the EU or in a country that has a tax treaty with Ireland); and
- If required, a valid DWT declaration form is filed with the dividend or distribution paying company before the dividend is paid.
Dividends received 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.
A tax credit introduced in the Finance Act 2013 effectively provides a top-up where the actual tax credit available under a tax treaty or unilateral credit provision is insufficient for certain EU dividends.
A public consultation on the introduction of a territorial regime of taxation (to include an exemption for foreign dividends) was due to take place in 2019. However, it was decided to wait until there was greater certainty around the international taxation environment before addressing this issue directly.
In general, Irish source interest is subject to 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.
- From one Irish resident company to another Irish resident company in the same Irish tax group.
- To all corporations in EU member states (other than Ireland) and most treaty country residents.
- To which the Directive 2003/49/EC on interest and royalty payments (Interest and Royalty Directive) applies.
IP royalties paid
Payments made for IP 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 certain conditions are met including that 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.
23. Are there any thin capitalisation rules (restrictions on loans from foreign affiliates)?
Ireland does not have thin capitalisation rules. However, Ireland does have limited rules in relation to interest deductibility, for example, interest payments to certain non-EU resident 75% parent companies are treated as distributions, subject to treaty relief under a non-discrimination article.
It is expected that Ireland will introduce an Interest Limitation Rule (ILR), compliant with EU Directive (EU 2016/1164 – Anti-Tax Avoidance Directive) with effect from 1 January 2022.
24. Must the profits of a foreign subsidiary be imputed to a parent company that is tax resident in your jurisdiction (controlled foreign company rules)?
The Finance Act 2018 provided for the introduction of a CFC regime in Ireland as required by the Anti-Tax Avoidance Directive, for accounting periods beginning on or after 1 January 2019.
For the purpose of the CFC rules a company is considered to have control of a subsidiary where (in broad terms) it has direct or indirect ownership of or entitlement to more than 50% of the share capital, voting power or distributions. The CFC rules are an anti-abuse measure, designed to prevent the diversion of profits to offshore entities (CFCs) in low or no tax jurisdictions. The CFC rules operate by attributing certain undistributed income of a CFC, arising from non-genuine arrangements put in place for the essential purpose of avoiding tax, to the controlling parent company or connected company in the state for immediate taxation.
The CFC rules require an analysis as to the extent to which the CFC would hold the assets or bear the risks that it does were it not for the controlling company undertaking the significant people functions (SPFs) in relation to those assets and risks. In cases where the CFC relies on Irish SPFs to generate its income, no CFC charge will arise if it can be established that the:
- Arrangements were entered into on arm’s length terms.
- Arrangements are subject to Irish transfer pricing rules.
- Essential purpose of the arrangements is not to secure a tax advantage.
- CFC did not have any non-genuine arrangements in place.
In addition, a number of exemptions are provided, including an effective tax rate exemption, low profit margin exemption, low accounting profit exemption and a one-year grace period in respect of newly-acquired CFCs where certain conditions apply.
25. Are there any transfer pricing rules?
Ireland implemented a transfer pricing regime in 2010 that is based on OECD principles. Changes were made to this regime in Finance Act 2019, to extend this regime to non-trading and certain capital transactions (which were previously excluded) and to incorporate the OECD 2017 Transfer Pricing Guidelines into Irish law. The new regime applies with effect from 1 January 2020. There is a limited exemption for certain non-trading transactions between Irish residents.
Finance Act 2019 also extended the transfer pricing rules to small and medium sized companies. However this extension has not yet been commenced by the required Ministerial Order.
26. How are imports and exports taxed?
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.
The place of supply of certain services is subject to the “reverse charge mechanism”. The EU created the concept of reverse charging VAT in order to simplify trade within the single market. When a transaction is subject to reverse charge, the recipient of the goods or services reports both their purchase (input VAT) and the supplier’s sale (output VAT) in their VAT return. The zero rate of VAT applies to exports to a destination outside the EU VAT area.
27. Is there a wide network of double tax treaties?
Ireland has signed comprehensive double tax treaties with 74 countries, of which 73 are in effect, including treaties with all EU member states, the US, China, India and all OECD member countries. Ireland signed a new double tax treaty with Ghana which has not yet entered into effect. Negotiations for double tax treaties with Kenya, Kosovo, Oman and Uruguay have recently concluded.
When a double taxation agreement does not exist with a particular country there are provisions in the Irish Taxes Consolidation Acts 1997 which allow unilateral relief against double taxation in respect of certain types of income.
28. Are restrictive agreements and practices regulated by competition law? Is unilateral (or single-firm) conduct regulated by competition law?
The Competition and Consumer Protection Commission (“CCPC”) is the relevant enforcement body. The Competition and Consumer Protection Act 2014 (“CCPA 2014”) came into effect on 31 October 2014. This established the CCPC, which replaced the former Competition Authority and National Consumer Agency. The CCPA 2014 gives the CCPC powers to investigate and enforce suspected infringements of competition law.
Restrictive agreements and practices
Irish competition law is based on EU competition law and is contained in the Competition Acts 2002 to 2017 (Competition Acts). The Competition Acts prohibit:
- All restrictive arrangements between undertakings (unless they satisfy certain efficiency conditions).
- The abuse of a dominant position by one or more undertakings in any market in Ireland.
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 and 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 CCPC can seek a declaration that an infringement exists, and an injunction to prevent its continuance, but does not currently have the power to:
- Seek damages.
- Impose an infringement finding which is binding on an undertaking by administrative decision.
- Impose administrative fines.
If the CCPC settles a civil case, the settlement can be made an Order of the High Court.
However, the forthcoming Competition (Amendment) Bill 2021, which transposes the ECN+ Directive into Irish law, will have a significant impact on the enforcement of competition law in Ireland. The Competition (Amendment) Bill 2021 will give the CCPC new powers to issue fines to undertakings for breaches of Irish and EU competition law, including those for anti-competitive arrangements. The CCPC will therefore have the power to enforce competition law more effectively by taking punitive and deterrent measures against undertakings. The scope of reforms to be introduced under Irish law as a result of the ECN + Directive have not yet been confirmed at the time of writing.
Unilateral conduct is regulated by section 5 of the Competition Acts which prohibits the abuse of a dominant position by one or more undertakings in a market in Ireland or part of Ireland.
Infringements of section 5 can be challenged under the criminal and civil law. However, in practice, and to date, actions have only been taken in the civil courts. In a civil action, in addition to declaratory and injunctive relief, the High Court can also impose structural remedies on dominant companies which abuse their dominance. As outlined above, the forthcoming Competition (Amendment) Bill 2021 will have a significant impact on the enforcement of competition law in Ireland, including for abuse of dominance.
29. Are mergers and acquisitions subject to merger control?
Transactions subject to merger control
Mergers and acquisitions potentially fall under the provisions of Regulation (EC) 139/2004 on the control of concentrations between undertakings (Merger Regulation) or, if not, the Competition Act. Notification depends on the turnover of the undertakings involved.
For the purposes of the Competition Act, a merger or acquisition arises if any of the following events occurs:
- two or more undertakings, previously independent of one another, merge;
- one or more undertakings, or one or more individuals who already control one or more undertakings, acquire direct or indirect control of the whole or part of one or more other undertakings; and
- the acquisition of part of an undertaking, although not involving an acquisition of a corporate legal entity, involves the acquisition of assets (including goodwill) that constitute a business to which a turnover can be attributed.
Control is generally commensurate with the concept of decisive influence under the Merger Regulation, i.e. that it gives the acquiring undertaking the ability to affect the strategic commercial direction of the acquired undertaking or assets that constitute a business.
A merger or acquisition will be notifiable to the CCPC if the following thresholds are met in the most recent financial year of each undertaking involved:
- the aggregate turnover in the State of the undertakings involved is no less than €60 million; and
- the turnover in the State of each of two or more of the undertakings involved is no less than €10 million.
Foreign to foreign acquisitions are subject to the notification requirements if the parties meet the thresholds, regardless of where they are domiciled. On notification, the CCPC will consider whether the merger should be allowed to proceed.
A special regime for media mergers applies under the CCPA 2014. A media merger arises where at least two of the undertakings involved carry on a media business, at least one of which is carried on in Ireland. All media mergers are notifiable to the CCPC and, if approved subsequently by the CCPC, to the Minister for Media, Tourism, Arts, Culture, Sport and the Gaeltacht (Minister for Media) irrespective of financial thresholds. In addition, a notification of such a media merger must be made to the Minister for Media even if the transaction is otherwise notifiable to the European Commission under the EU merger control regime.
Anti-bribery and corruption
30. Are there any anti-bribery or corruption regulations affecting business in your jurisdiction?
Bribery and corruption in Ireland are primarily regulated by the Criminal Justice (Corruption Offences) Act 2018 which was commenced in July 2018 and repealed the preceding regulations. Bribery also remains an offense at common law. Individuals and companies may be liable under the 2018 Act which sets out offences for active and passive corruption, active and passive trading in influence and giving of gifts to facilitate an offence, among others. Additional bribery and corruption offences are set out in the Criminal Justice Act 2011 and the Proceeds of Crime Acts 1996 to 2016.
The Regulation of Lobbying Act 2015 sets out requirements for designated public officials and those who engage in lobbying activities to increase transparency in lobbying. The Ethics in Public Office Acts 1995 and the Standards in Public Office Act 2001 regulate the conduct of parliamentarians and designated public servants and are overseen by the Standards in Public Office Commission.
31. What are the main IP rights that are recognised in your jurisdiction?
Definition and legal requirements. For an invention to be patentable, it must:
- Be susceptible to industrial application.
- Be new.
- Involve an inventive step.
The patent owner can prevent direct or prevent the exploitation of their patented invention by third parties without their 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 their 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 ten years. In obtaining a short-term patent, there is a lower threshold of inventiveness.
Unified EU patent. In the coming years, it will be possible to apply for a unitary patent in the EU which, instead of offering a patchwork of protection as is the current situation, the Act Revising the European Patent Convention 2000 (Munich EPC Act) will offer a blanket patent protection across the EU with access to a unified patent court. The EU regulations which established the Unitary Patent System entered into force on 20 January 2013 but will only apply as from the date the UPC Agreement enters into force, with the new unitary patent court opening its doors four months after. The UPC preparatory committee has stated it expects a “fully functioning UPC” towards the end of 2022, or early 2023.
Definition and legal requirements. Trade marks are defined by the Trade Marks Act 1996 as any sign capable of both:
- Being represented in any appropriate form on the register, as long as the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective.
- 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. An EU trade mark (EUTM) provides EU-wide protection. If a party wishes to register a EUTM, this must be done through the EU Intellectual Property Office in Spain.
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. In addition, under the European Union (Trade Mark) Regulations 2018 the owner of a trademark may apply for an order preventing preparatory infringing acts such as affixing a mark to packaging and an order for the seizure of infringing goods passing through Ireland.
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 has a legal monopoly on the use of the design and can assert his or her rights against any third party who undertakes any act which uses the design, regardless of the third party’s intent.
Registration. An Irish registered design right is obtained by registration at the IPO and is accessible in the office’s electronic register and database created under the Industrial Designs Act 2001. Design registrations made under the Industrial and Commercial Property (Protection) Act 1927 are only searchable in the office’s paper based register, and community designs are registered with the European Union Intellectual Property Office (Trade Marks and Designs) (EUIPO).
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 (Community Designs Regulation). 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 intentional 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 amounts to intentional copying of the design. 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.
- Computer programmes.
- Original databases.
Protection. To obtain protection, the work must be original. The protection only applies to works, and not ideas. It subsists automatically on creation, as soon as the idea is fixated, for example, on paper, film or other mixed mediums such as CD-ROM, DVD, or on the internet. Registration is not required. The copyright owner is granted the following:
- Reproduction rights.
- Making available rights.
- Distribution rights.
- Rental and lending rights.
- Adaptation 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. The copyright owner has the exclusive right to either prohibit or authorise others to undertake the following:
- Copy the work.
- Perform the work.
- Make the work available to the public through broadcasting or recordings.
- Make an adaption of the work.
Enforcement and remedies. The copyright owner can enforce the right in court. Remedies include:
- An injunction.
- 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 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 musical composition with words expires 70 years after the death of either the author of the musical composition or the author of the words of the musical composition, whichever death is later. 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). Where a sound recording was created on or after 1 November 2013 the term of protection is 70 years after the sound recording is made. 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. Copyright in an original database lasts for 15 years from the end of the calendar year in which the database was completed.
The European Union (Protection of Trade Secrets) Regulations 2018 were implemented in Ireland on 9 June 2018. The Regulations implement Directive (EU) 2016/943 on the protection of undisclosed know-how and business information against their unlawful acquisition, use and disclosure (Trade Secrets Directive) and provide for civil redress measures and remedies for the unlawful acquisition, use or disclosure of trade secrets.
A trade secret is defined in the Trade Secrets Directive as information which:
- Is secret, in the sense that it is not generally known or accessible.
- Has commercial value.
- Has been subject to reasonable steps to keep it a secret.
Court proceedings. The Regulations provide that if someone unlawfully acquires, uses or discloses trade secrets, the affected party can issue legal proceedings in the District, Circuit or High Court (depending on the value of the claim) within six years.
The court has powers to make various orders, including:
- Prohibiting the wrongdoer from using or disclosing the trade secret, or stopping them from doing so.
- Prohibiting the placing of any object embodying the trade secret on the market.
- That any object embodying the trade secret be destroyed or recalled, or that it be deprived of its infringing quality.
- Directing the wrongdoer to pay damages.
The court can order that those involved in the legal proceedings cannot use or disclose any alleged trade secret of which they become aware as a result of their involvement in the proceedings. However, the order will cease to have effect if the court determines that the alleged trade secret is not in fact a trade secret within the terms of the Trade Secrets Directive or if the information becomes generally known or readily accessible.
The court can also restrict access to any document containing an alleged trade secret, restrict access to hearings when an alleged trade secret may be disclosed and restrict access to the corresponding transcript. This is similar to the setting up of a confidentiality club or ring in commercial proceedings between business competitors.
Breach of confidence. A party may also have a claim under the common law for breach of confidence. Confidential information is information communicated in circumstances importing an obligation of confidence (for example, in the course of employment). Until the introduction of statutory trade secret protection, trade secrets were only protected through the common law action of breach of confidence or under contract. Whether the protection arises in these circumstances 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 or 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.
32. Are marketing agreements regulated?
There are no particular steps or registration formalities required to conclude a marketing agreement with a local representative in Ireland and there are no particular nationality restrictions for local representatives provided that they are lawfully resident in Ireland.
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.
There are non-binding codes of conduct that may be used as guidance such as the Irish Franchise Association Code of Ethical Conduct which is based on the European Code of Ethics for Franchising.
Unlike commercial agency, there is no mandatory entitlement under Irish law for a local franchisee or distributor to claim compensation for the termination of or failure to renew the marketing agreement.
Distribution and franchising agreements are forms of vertical agreements or practices between undertakings and are subject to European and Irish competition law which can prohibit such agreements. The European Commission adopted a block exemption in respect of vertical agreements (Reg No. 330/2010) and has published updated Guidelines on Vertical Restraints (SEC 2010 411) on the application of the block exemption. An agreement which complies with requirements set out in the block exemption will fall outside the prohibition on vertical agreements under EU law. Likewise, the CCPC in Ireland adopted a Declaration in respect of Vertical Agreements and Concerted Practices (D/10/001) (which is updated from time to time) and vertical restraints which satisfy certain conditions in the 2010 Declaration benefit from a presumption of legality. Exclusive and selected distribution agreements may be regarded as compatible with competition law under the block exemption and the 2010 Declaration provided that they do not include certain excluded or “blacklisted” clauses outlined in the block exemption and the 2010 Declaration.
33. Are there any laws regulating e-commerce?
The primary Irish laws governing e-commerce are; the Electronic Commerce Act 2000 (the “E-Commerce Act”), the European Communities (Directive 2000/31/EC) Regulations 2003 (the “E-Commerce Regulations”) and the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013, as amended (the “Consumer Rights Regulations”). These are predominantly derived from EU Directives and are layered on top of existing Irish consumer rights law and contract law.
- E-Commerce Regulations: These Regulations give effect to certain provisions of Directive 2000/31/EC, which establishes harmonised rules on issues such as the transparency and information requirements for online service providers, commercial communications, electronic contracts and limitations of liability of intermediary service providers. The Regulations set out certain minimum information to be provided prominently on a website in a manner which is easily, directly and permanently accessible. This minimum information includes, among other details, the name, geographic address, e-mail address, and VAT number of the service provider.
- Consumer Rights Regulations: These Regulations transpose EU Directive 2011/83/EU into Irish law and deal with information rights, rights of cancellation, the prevention of hidden costs and the transfer of risk to the customer. They apply to on-premises/off-premises/distance contracts concluded between a trader and a consumer, subject to a number of exceptions (for example contracts for financial services). A consumer is defined as a natural person acting for purposes outside the person’s trade, business, craft or profession. Therefore, the Consumer Rights Regulations apply to business to consumer transactions but not to business to business transactions. The Regulations impose a number of duties on a trader in relation to e-contracts, in default of which the contract is not binding on the consumer.
- Website Information: In addition to the information requirements set out in the Consumer Rights Regulations and the E-Commerce Regulations, the Companies Act 2014 requires that certain corporate details of a company (such as company name, place of registration and registered address) be displayed on a website of a company in Ireland.
- Electronic information, communications and signatures
The E-Commerce Act provides for the legal recognition of electronic communications and information in electronic form, as well as contracts in electronic form subject to limited exceptions. Section 19 of the E-Commerce Act expressly provides that, subject to limited exceptions, contracts may be concluded electronically, and an offer and acceptance can be communicated electronically unless otherwise agreed by the parties. The E-Commerce Act also provides for the accreditation, supervision and liability of certification service providers and the registration of domain names.
The E-Commerce Act and Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (“eIDAS Regulation”) together govern electronic signatures in Ireland. Section 13 of the E-Commerce Act permits the use of e-signatures generally, and Article 25(1) of the eIDAS Regulation holds that an e-signature should not be denied legal effect/admissibility purely because it is electronic. Both the E-Commerce Act and the eIDAS Regulation are technologically neutral and do not prescribe any particular form of technology that must be used in an electronic signature.
Forthcoming Irish legislative developments
In May 2021, the Department of Enterprise, Trade and Employment opened a consultation on a Scheme of the Consumer Rights Bill 2021, which aims to consolidate and update the legislative provisions that regulate the main types of consumer contract. The Scheme gives effect to Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services, Directive (EU) 2019/771 on certain aspects concerning contracts for the sale of goods, and to the main provisions of Directive (EU) 2019/2161 on the better enforcement and modernisation of EU consumer protection rules.
In Ireland, the rules regarding the delivery of unsolicited communications using electronic communication services are contained in the European Communities (Electronic Communications Networks and Services)(Privacy and Electronic Communications Regulations) 2011 (the “ePrivacy Regulations”). These rules vary according to the communication method used and the intended recipient. However, the general rule is that such unsolicited direct marketing communications cannot be sent unless the recipient consents.
EU Regulations of particular relevance to e-commerce and directly applicable in Ireland include:
- The ODR Platform Regulation (Regulation (EU) 524/2013) provides for a Europe wide online dispute resolution platform to which all traders established in the EU who engage in online sale or services contracts must provide access. The European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2015, as amended, implement into Irish law certain provisions of the ODR Platform Regulation. Online traders who trade with consumers must include information on their websites about the Online Dispute Resolution platform introduced by the EU in 2016. The Regulations designate the European Consumer Centre Ireland as the Online Dispute Resolution contact point in the State and create new offences under Irish law for traders who breach those provisions.
- The Geo-blocking Regulation (Regulation (EU) 2018/302) aims at preventing direct and indirect discrimination based on customer’ nationality, place of residence or place of establishment in cross-border commercial transactions between traders and customers in the EU. The European Union (Unjustified Geoblocking of Consumers) Regulations 2018 give effect, for consumers, to the Geo-blocking Regulation. They designate the CCPC for the purposes of Article 7 of the Geo-blocking Regulation as regards disputes between a consumer and a trader, and the European Consumer Centre Ireland for the purposes of Article 8 of the Geo-blocking Regulation and create new offences under Irish law in respect of traders who breach the provisions of the Geo-blocking Regulation.
- The P2B Regulation (Regulation (EU) 2019/1150) aims to ensure the fair and transparent treatment of business users by online platforms, giving them more effective options for redress when they face problems, creating a predictable and innovation-friendly regulatory environment for online platforms within the EU. The European Union (Promoting fairness and transparency for business users of online intermediation services) Regulations 2020 give further effect to the Regulation and create new offences under Irish law for providers of an online intermediation services and online search engines who breach the provisions of the P2B Regulation. The CCPC is appointed as designated body for the purpose of the P2B Regulation.
34. Are online platforms regulated in relation to their use for marketing/sales purposes?
The P2B Regulation applies to providers of online services that facilitate direct transactions between businesses and EU consumers. This includes all online intermediary service providers (“OIPs”) and online search engines with business users located in the EU that conduct business with consumers in the EU. It is not necessary for the OIPs themselves to be established in the EU. The Regulation places obligations on such online platforms in respect of search results and rankings, clarity of terms and conditions, and dispute resolution. For example their terms and conditions must include a description of any differentiated treatment given to goods and services they offer themselves (or by professional users they control), compared to the treatment they give to goods and services offered by other professional users.
The CCPC has investigated the pricing practices of online travel agents. The CCPC was concerned that an online travel agent’s use of most favoured nation clauses risked infringing both Irish and EU competition law. The CCPC closed its investigation subject to legally binding commitments in 2015.
35. How is advertising regulated in your jurisdiction?
Advertising in Ireland is regulated in a number of ways, through common law (e.g. passing off), self-regulation (e.g. by adherence to voluntary codes) and statute.
The regulation of broadcast advertising is carried out by the BAI, through the implementation of a number of codes and standards. Other forms of advertising are largely managed on a self-regulatory basis, pursuant to codes set by the Advertising Standards Authority for Ireland (“ASAI”). The Code of Standards for Advertising and Marketing Communications in Ireland (7th Edition) is drawn up by the Board of ASAI following detailed consultation with all relevant interests. The ASAI Code now contains rules about Online Behavioural Advertising (OBA).
The key enactments applicable to advertising in Ireland include the Consumer Protection Act 2007, as amended; the European Communities (Misleading and Comparative Marketing Communications) Regulations 2007; and the European Communities (Requirements to Indicate Product Prices) Regulations 2002.
In addition, the advertising of the following products and services (including online) are subject to specific control in Ireland by law or industry codes (or both): tobacco; gambling; financial products and services, alcohol, medicinal products and products and services targeted towards children.
The European Communities (Electronic Communications Networks and Services)(Privacy and Electronic Communications Regulations 2011 (the “ePrivacy Regulations”) together with the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), regulate direct marketing in Ireland. Data controllers must comply with the provisions of the GDPR (e.g. by ensuring they have a lawful basis for processing personal data under the GDPR) and comply with the direct marketing rules under the E-Privacy Regulations. The applicable rules under the E-Privacy Regulations as regards direct marketing differ depending upon the nature of the recipient (business or consumer) and the means of communication used (e.g. telephone or email).
36. How are sales promotions regulated in your jurisdiction?
The Consumer Protection Act 2007, as amended (“Consumer Protection Act”), applies to commercial practices in business to consumer transactions. It prohibits unfair commercial practices, misleading commercial practices and aggressive commercial practices, within the meaning of the Act. A commercial practice is misleading if it includes the provision of false information in relation to a range of factors, including the existence or nature of a product, the characteristics and the price of the product, and that information would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make. The Consumer Protection Act lists a wide range of behaviours which are considered misleading, aggressive or otherwise prohibited (e.g. making a representation that a product is free, if a consumer has to pay anything other than the necessary and reasonable cost of responding to the representation, and collecting the product or having it delivered).
Gaming and lotteries in Ireland (aside from the National Lottery) are governed primarily by the Gaming and Lotteries Act 1956 as amended. The term “lotteries” is broadly defined in this legislation and may extend to prize competitions. Promoting lotteries is generally prohibited without a lottery permit or licence with the exception of promotional prize draws or small charitable lotteries.
The ASAI maintains a Code of Conduct of Standards for Advertising and Marketing Communications that applies to all advertising generally. The Code contains a number of provisions regulating various forms of promotion, including price reductions and offers, vouchers, prize promotions and competitions.
Other legislation imposes sector-specific requirements on promotional offers (e.g. grocery goods, alcohol and cosmetic products, among others).
37. Are there specific data protection laws? If not, are there laws providing equivalent protection?
Data protection laws
Data protection is regulated primarily by the:
- Data Protection Acts 1988 to 2018 (which also transposes the Law Enforcement Directive (Directive (EU) 2016/680 into Irish law) (the “Data Protection Acts”).
- 2011 e-Privacy Regulations (S.I. No. 336 of 2011, the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011) (which implements Directive 2002/58/EC on the protection of privacy in the electronic communications sector (E-Privacy Directive) as amended by Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks (Data Retention Directive) and Directive 2009/136/EC on consumer protection and users’ rights in relation to the processing of personal data and the protection of privacy in electronic communications (Citizens’ Rights Directive). These data protection provisions are enforced and administered by the Data Protection Commission.
The data protection regime was dramatically changed by the GDPR which entered into force on 25 May 2018. The GDPR changed the previous definition of consent (that is, it is now harder to obtain consent) and contains the potential for large fines of up to 4% of annual turnover or EUR20 million, whichever is higher.
The Data Protection Acts clarify the position in relation to Irish law derogations under the GDPR.
Data protection is also impacted by the:
- Freedom of Information Act 2014 (this provides a legal right for persons to access information by a body to which freedom of information legislation applies); and
- Protected Disclosures Act 2014 (this provides employment protections and certain legal immunities to workplace whistle blowers).
38. How is product liability and product safety regulated?
Liability can arise under the following:
- Liability can arise under the Sale of Goods Act 1893, as amended by the Sale of Goods and Supply of Services Act 1980.
- The general common law principle of duty of care applies in Ireland.
- Statutory liability. The Liability for Defective Products Act 1991 (LDPA) implements Directive 85/374/EEC on liability for defective products into Irish law.
- The European Communities (General Product Safety) Regulations 2004 (GPSR) implement Directive 2001/95/EC on general product safety.
Statutory test. A producer is liable for damages in tort for injury resulting wholly or partly from a defect in their product. This is a strict liability regime. The burden is on the injured person to prove the damage, defect and causal relationship between the defect and damage. A product is defective if it fails to provide the safety which a person is entitled to expect taking all circumstances into account.
Negligence. For an action against the manufacturer or producer of a product to be made in negligence, the following must be present:
- A duty of care owed by the producer or manufacturer of the product to the consumer.
- A breach of that duty of care.
- A causal relationship between the breach of duty and the damage caused to the user of the product.
The burden of proof rests on the claimant and the standard of proof is on the balance of probabilities.
Under the LDPA, a producer is liable for damages caused wholly or partly by a defect in his/her products. Where a producer cannot be identified, subject to certain conditions, suppliers may be held liable given the broad definition of producer in the LDPA. The GPSR gives rise to potential criminal liability for producers who place an unsafe product on the market.
The limitation period in Ireland for personal injury claims is two years from the date of accrual of the action or the date on which the claimant became aware of the accrual of the action, whichever is later. However, the LDPA provides for a three year limitation period for defective product claims which runs from the date on which a claimant became aware (or should reasonably have become aware) of the damage. This is subject to a long stop provision under which a claimant’s rights are extinguished on the expiry of ten years from the date on which the producer put into circulation the actual product which caused the damage, unless they have in the meantime instituted proceedings against the producer.
Contract claims can be made within six years from the date the breach of contract occurred.
39. What are some of the key regulatory authorities relevant to doing business in your jurisdiction?
Central Bank of Ireland
Main activities. Main regulator with compliance and enforcement responsibilities for credit institutions, retail credit firms, investment firms and other financial services providers.
Companies Registration Office
Main activities. The Companies Registration Office is the central repository of public statutory information on Irish companies and business names. Responsibility for registering new companies, business names and other post-incorporation filings and for the enforcement of Irish company law in relation to filing obligations of companies.
Competition and Consumer Protection Commission
Main activities. Enforcement of competition and consumer protection law. Assessing mergers, acquisitions and takeovers. Enforcement of product safety regulations.
Environmental Protection Agency
Main activities. Responsibility for authorisation (Licencing and permitting) of activities having an impact on the environment or on human health. Oversees environmental protection work of local councils.
Main activities. Responsibility for collecting taxes and duties and implementing customs controls.