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Why Ireland?

A guide to doing business in Ireland

BW

_122011

ByrneWallace is one of Ireland’s largest law firms. Our clients are leading, innovative and growing publicand private enterprises active in all key industry sectors.

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Driven by client needs Over the years we have earned a reputationwithin Ireland and internationally as a leadingbusiness law firm with an award-winningapproach to client service. We offer clientsmore than excellent transactional andspecialist advice. We want to be recognizedas “Your Legal Business Partners”, deliveringthe full benefits of a trusted legal businesspartnership. This means that we challengeourselves to find ways of adding businessinsight as well as legal excellence.

Delivering solutionsWe look to devise solutions and uncoveropportunities, not just point to problems.Our job is to understand our clients, theirmarkets and their business goals andobjectives – and to tailor our servicesaccordingly. In addition to first-rate legalexpertise, we apply commercial knowledge,insight and a practical understanding of thetotality of the issues to all our client work.

Resourced for successWith 40 partners and a total staff of 250people in our main offices in Dublin, we havethe scale and experience to ensure that wedeliver on our promises in a timely, efficientand cost-effective manner. We are accessible,approachable and properly resourced todeliver the level of service you require.

Expanding We recently opened our New York office tocater for the legal needs of our US clientslooking to expand into Ireland and the rest ofthe EU. Through our association withleading Northern Ireland law firm Mills Selig,we meet the needs of our clients throughoutthe island of Ireland.

Providing focused expertiseWe are a full service practice with ourservices divided into the following areas:

• Banking and Financial Services• Capital Markets• Corporate• Corporate Restructuring

and Insolvency• Data Protection• Dispute Resolution (litigation)• Employment Law• EU and Competition/Regulatory• Green Economy• Health Services• ICT, Software & Digital Media • Inward Investment• Life Sciences• Outsourcing• Projects, Energy and Natural Resources• Property• Tax

Award-winning• First Irish law firm to achieve

ISO 14001 (2010)• First Irish Law firm to win Professional

Services Green Award (2010)• Client Service Law Firm of the Year

(Chambers & Partners, 2008)

ByrneWallace I Why Ireland? A guide to doing business in Ireland I 1

Contents

Why Ireland? 2Ireland’s tax advantages 5The investment vehicle 9Labour 10Real estate 14Intellectual property 17Technology 19Competition and antitrust 22Credit institutions and banking 25Investment funds 28Our inward investment expertise 30Our inward investment team 32

2 I Why Ireland? A guide to doing business in Ireland I ByrneWallace

Over severaldecades Ireland hasbecome a magnetfor foreign directinvestment (FDI).Ireland is the globalbase of choice forsome of the world’slargest corporations.FDI generates morejobs per capita inIreland than in anyother country. Sowhat are theprincipal reasons why Ireland is sosuccessful inattractinginvestment?MARKET ACCESS

Ireland is a member of the EuropeanUnion (EU), with over 500 millionconsumers. Within Europe, Ireland is theonly English speaking country which usesthe euro, apart from Malta. The Europeanmainland is readily accessible throughIreland's main ports and airports.Therefore more and more internationalcompanies use Ireland as their base toexpand from here into the rest of Europe,while availing of the benefits a leadingforeign direct investment location has tooffer.

12.5 % TAX RATE

Ireland offers one of the lowestcorporation tax rates in Europe. TheNational Recovery Plan 2011-2014 and theBudget 2011 both confirm Irelandsposition on maintaining the 12.5%corporate tax rate as a cornerstone of Irishtaxation policy. Irish tax residentcompanies benefit from a corporation taxrate of 12.5% on trading profits andcertain distributions received from foreigntrading subsidiaries. The scope of activitieswhich may be considered to be trading isquite broad and can include thedevelopment and exploitation ofintellectual property. A company is taxresident in Ireland if it is incorporated inIreland or if Ireland is the place of centralmanagement and control of the company.Irish tax law also contains extensive reliefsfor expenditure in relation to intellectualproperty and research and development.

FOREIGN TRADE

The 2010 Index of Economic Freedomrates Ireland as Europe's mosteconomically free country and the fifth inthe world in this regard.

One of the main export items areagricultural products, but information &communications technology, chemicalcomponents and pharmaceuticalproducts, medical and healthcare devicesare also very important. Ireland is alsobeginning to emerge as a leadingeconomy in the renewable energy sector.

The World Competitiveness Yearbook2010 ranked Ireland 19th out of 58countries worldwide for goods exportedas a percentage of GDP.

US investment has been particularlyimportant to the growth and

modernisation of Ireland providing amultiplier effect with new technology,export capabilities, and employmentopportunities. As of Q2 2011,the stock ofUS foreign direct investment in Irelandstood, at $190 billion, more than the totalfor Brazil, Russia, India and China – theBRIC countries – combined. There areapproximately 600 US subsidiariescurrently in Ireland employing around100,000 people and supporting work for afurther 250,000 out of a workingpopulation of 2 million spanning activitiesfrom manufacture of high-tech electronics,computer products, medical supplies, andpharmaceuticals to retailing, banking,finance, and other services. Ireland is alsoan important European research anddevelopment center for US firms inEurope.

THE HOLDING COMPANY REGIME

The principal benefits of locating aholding company in Ireland are theexemption from the charge to Irish capitalgains tax in respect of the disposal ofqualifying shareholdings in subsidiariesand the beneficial regime for the taxationof foreign dividends. While there is nospecific participation exemption, to theextent that dividends are received fromcompanies resident in the EU or in a taxtreaty country such as the US and arepayable out of the trading profits of suchsubsidiaries, those dividends are taxed inthe hands of an Irish holding company atthe lower 12.5% rate. Although Irelandimposes a dividend withholding tax andwithholding on interest payments (both at20%), domestic law provides for wideexemptions from these obligations,particularly for dividend payments.

Why Ireland?


“Ireland is home to8 of the top 10 global

technology companiesand 15 of the top 25

medical devices firms“


RESEARCH AND DEVELOPMENT (R&D)

Ireland offers a very competitive Researchand Development Tax Credit system. In2010 50% of IDA Ireland supportedForeign Direct Investment were inresearch and development, valued at over€500 million. According to the latest IBMGlobal Trends report 2010 Ireland isplaced 9th globally for estimated totaljobs in Research and Development.Ireland offers a tax credit of 25% ofincremental expenditure by a company, orgroup of companies incurred wholly andexclusively on research and development.

EXTENSIVE TAX TREATY NETWORK

Ireland has signed double taxation treatieswith 62 countries. New treaties with Turkey,Serbia, Georgia and Moldova are in forcesince January 2011. New treaties weresigned with Hong Kong, Singapore andthe United Arab Emirates among othersand will have to be ratified. Updatedtreaties with Germany, Belgium andSwitzerland will be signed shortly.

THE NATIONAL RECOVERY PLAN2011-2014

The Irish Government's National RecoveryPlan 2011-2014 announced on the 24th ofNovember 2010 aims to deal with Ireland'scurrent fiscal challenges but will continueto improve Ireland's attractiveness tooverseas investors and help to sustainIreland's projected levels of economicgrowth. Key measures in the plan areaimed at overseas investors, supportingResearch and Development and focusingon job creation.

BUSINESS ENVIRONMENT

Ireland offers a pro business attitude, thisis apparent when looking at successiveGovernments policies, the approach takenby Government Agencies and the workingculture. Ireland has a stable constitutionbased parliamentary democracy, anexcellent transport network and a veryadvanced telecommunication network.Ireland was ranked third within the EU forits ease of doing business according tothe World Bank Doing Business 2011Report.

HIGHLY SKILLED WORK FORCE

Almost 50,000 graduates leave Irishcolleges every year. A large percentage ofthese with degrees in business studies,science and engineering and most speaka second language. According to theEurostat Yearbook 2010 Ireland has thethird highest proportion of science, mathsand computer graduates in the 20-29 agegroup within the EU. Also according to theIMD World Competitiveness YearbookIreland ranks fourth regarding theavailability of skilled labour. This makesIreland a very attractive place to locate.

COST COMPETITIVE

One of the few good things to come outof the global economic downturn hasbeen a pressure on costs. With rents, bothoffice and private and salaries fallingdramatically in the last two years, Irelandhas becoming increasingly costcompetitive. As a consequence Irelandwas ranked 10th worldwide for thenumber of jobs created in businesssupport services, including call centers,shared services centers and businessoutsourcing in a study undertaken by IBMhighlighting the role of foreign directInvestment.

IDA AND ENTERPRISE IRELAND

Ireland has recognised for a number ofyears the need to assist foreign companieswho wish to invest here. Several agencieswere founded. The main agencies todayare the IDA and Enterprise Ireland.ByrneWallace has a very good workingrelationship with both the IDA andEnterprise Ireland and can facilitaterelevant introductions.

The IDA provides foreign companies withhelp and guidance for setting upoperations in Ireland and can also helpcompanies who have already set upoperations here. Various grants andfinancial assistance to companies locatinghere are available and it is advisable to getinto contact with the IDA from the start ofthe planning process in order to avail of allpossible assistance.

The IDA's strategy Horizon 2020 isfocused on employment intensive servicesand R&D. There may be capital grantsavailable for example for sitedevelopment, or grants for training of thework force and the IDA also has a numberof business parks where companies canlocate.

Enterprise Ireland is assisting Irishcompanies and foreign companies in thefood, drink and timber sector who wish toset up in Ireland.

Ireland is a very attractive location forbusiness and we hope that this guide willhelp you and your company to fullyappreciate Irelands offering. Any queries,we are happy to assist.

According to the latest IBM Global Trendsreport 2010 Ireland is placed 9th globally forestimated total jobs in Research andDevelopment”

”


CORPORATION TAX

The scope of Irish corporation tax is largelydependent on the residence status of acompany. Broadly speaking, an Irish taxresident company is liable to Irishcorporation tax on its worldwide incomeand gains, no matter what their source ornature, though specific exemptions doexist for certain types of income such asdistributions from other Irish residentcompanies and patent income.

A non-Irish resident company can alsocome within the scope of Irish corporationtax where it carries on activities in Irelandthrough a branch. Such non-residentcompanies are subject to Irish corporationtax on the profits of that branch. However,as Irish tax law treats a branch and itsparent company as one and the sameentity for legal purposes, no withholdingtaxes are imposed on the repatriation ofbranch profits to its parent.

In general, a company is tax resident inIreland if it is incorporated in Ireland, whichis known as the place of incorporation test.However, the general rule is not followedin certain circumstances:

• If the company is under the ultimatecontrol of a person resident in an EUMember State or in a country withwhich Ireland has a double tax treaty,

or which itself is, or is related to, acompany whose principal class ofshares is substantially and regularlytraded on a stock exchange in an EUcountry or treaty country

• If the company carries on a trade inIreland or is related to a company thatcarries on a trade in Ireland.

In these circumstances, a company isdeemed to be tax resident where itscentral management and control resides.There is no statutory definition of whatconstitutes management and control andinstead case law is relied upon to provideguidance. The available body of case lawon the subject indicates that many factorsneed to be considered but the mostimportant and overriding of these are theplace where the directors of the companyare resident and the place where boardmeetings are held.

Rates of corporation tax

The rate of corporation tax charged is

dependent on the nature of the profits. In

general, trading profits and certain

distributions received from foreign trading

subsidiaries are liable to corporation tax at

12.5%. All other income is liable to

corporation tax at 25%.

There is no definition provided in Irish tax

law as to what constitutes trading for

corporation tax purposes other than to say

that the following activities are specifically

excluded:

• dealing in or developing land;• working minerals; and• petroleum activities.

Profits from these activities are thereforeliable to corporation tax at 25%.

In addition, despite pressure beingexerted by other EU member states, theIrish Government, as part of the NationalRecovery Plan 2011-2014, reaffirmed itscommitment to maintaining the 12.5%corporation tax rate.

What constitutes a trade?As mentioned above, under Irish tax lawthere is no guidance as to what constitutestrading profits for the purposes of the12.5% corporation tax rate. There arehowever a number of other non-statutorysources of guidance as to what constitutesa trade for these purposes:

• a list of factors, known as the “badgesof trade” and published by the UKRoyal Commission on the Taxation ofProfits in 1955, which are generallyaccepted as being indicative of tradingactivity;

• available case law; and

• guidance published by the IrishRevenue Commissioners.

Ireland’s tax advantages

The favourable tax environment is a cornerstone of Ireland’s inwardinvestment success. Utilising this advantage is a valuable tool for tax-efficient overseas investment and Ireland is increasingly beingchosen as the home of the low tax “principal” company in severalsignificant international corporate structures.


“ The 2010 Index of Economic Freedomrates Ireland as Europe's mosteconomically free country and the fifth in the world in this regard”


Perhaps the most useful of these sources

is the guidance published by the Revenue

Commissioners. In this guidance, as well

as the more traditional activities which

they deem to constitute trading, the

following are also included:

• activities relating to the developmentand exploitation of intellectualproperty rights;

• corporate treasury functions;• investment management activities;• distribution activities; and• activities relating to the carrying out of

research and development.

HOLDING COMPANY REGIME

One of the key facets of the favourable taxregime in Ireland is its attractiveness as aholding company location formultinational groups. This attractiveness issupported by a number of incentives:

• exemption from the charge to Irishcapital gains tax in respect of thedisposal of qualifying shareholdings insubsidiaries;

• 12.5% rate of corporation tax ondividends received from companiesresident in the EU or in a country withwhich Ireland has a tax treaty and arepayable out of the trading profits ofsuch subsidiaries;

• limited transfer pricing rules and norelevant thin capitalisation orcontrolled foreign corporation rules forforeign income;

• significant exemptions fromwithholding tax on dividend andinterest payments made by an Irishholding company; and

• an extensive and very favourablenetwork of 62 double taxation treaties.

INTELLECTUAL PROPERTY REGIMEOver the past number of years Ireland hasemerged as the pre-eminent jurisdictionfor multi-nationals to locate theirintellectual property and the managementand development activities associated withit. This is not only due to the favourablecorporation tax rate for trading profits butalso as a result of a suite of other taxincentives surrounding intellectualproperty and intangibles.

Tax relief on acquisition cost ofintellectual property and intangiblesTax relief is available in respect of capitalexpenditure on the acquisition of a widerange of intellectual property andintangible assets, including patents, trademarks, brand names, know how, domainnames, scientific processes and goodwill(to the extent that it is related to any of theabove intangible assets).

The tax deduction may be claimed eitherin line with the accounting depreciationcharge included in the company’s financialstatements or by electing for a 15 yearwrite down period. However, thededuction is restricted such that it cannotexceed 80% of the profits associated withthe exploitation of the relevant intellectualproperty or intangibles for which thededuction is claimed.

Research and Development Tax CreditUnder Irish tax law, a tax credit is availableto companies in relation to certainexpenditure on research and development(R&D) activities. The key features of thecredit are as follows:

• 25% credit for incremental qualifyingexpenditure on R&D over the amountof expenditure incurred in the “baseyear”, now 2003;

• the credit is granted in addition to theregular tax deduction available forR&D expenditure;

• in order to qualify, expenditure on

R&D activities must seek to achievescientific or technologicaladvancement and involve theresolution of technological uncertainty;

• expenditure incurred on subcontractedR&D activities undertaken by a thirdparty can also qualify for the credit tothe extent that:

– the expenditure subcontracteddoes not exceed 10% of the overallexpenditure on R&D by the group;and

– the subcontractor does not claim acredit for the expenditure.

• expenditure that is subcontracted to aqualifying third level institution canalso qualify so long as it does notexceed 5% of the group’s overallexpenditure on R&D;

• the credit can also be refundable incertain circumstances where there is aninsufficient corporation tax liability toutilise the full credit for the accountingperiod in which the expenditure wasincurred. In this situation, the creditcan be:

– surrendered to other groupcompanies;

– carried back for offset against thepreceding period corporation taxliability; or

– claimed as a cash refund spreadover three years (subject to certainlimitations).

For companies claiming the credit, net taxrelief of 37.5% of the qualifying spend canbe available when the credit is combinedwith the regular tax deduction available forthe expenditure.


Allowance for Expenditure on Know-howExpenditure incurred in relation to theacquisition of know-how purchased from athird party and not as part of a trade is taxdeductible. However, unlike thededuction for expenditure on scientificresearch, a deduction for expenditure onknow-how is not available where it is notrelated to the trade being carried on bythe company in question.

Know-how purchased from a related partyor acquired as part of a purchase of atrade may qualify for book depreciationtreatment.

Expenditure on Scientific ResearchA deduction is available for revenue andcapital expenditure on scientific research.This deduction is available even where theexpenditure on the research is not relatedto the trade of the company in question.

A deduction against profits is alsoallowable for payments, whether capital orrevenue in nature, to a body carrying onscientific research that is approved by theMinister of Finance or to an Irish universityin order to undertake scientific research.

REGULATED FUND REGIME

Leveraging its favourable tax andregulatory regimes, Ireland has emergedas a world leading location for theregulated funds industry.

From a tax perspective regulated fundsare subject to what is known as a “grossroll-up” regime whereby income or gainsare generally not taxed immediately andinstead tax (known as exit tax) onlybecomes chargeable on payments ordistributions out of the fund to investors.Furthermore, non-resident investors areexempt from any charge to Irish tax

(including exit tax) in respect of aninvestment in an Irish regulated fund.

STRUCTURED FINANCE REGIME

Over a number of years, Ireland’sstructured finance legislation has beensteadily enhanced such that Ireland is nowone of the pre-eminent locations for theestablishment of vehicles used instructured finance transactions.

Irish tax law ensures that structured financevehicles established in Ireland (known asS.110 companies) suffer minimal Irish taxleakage in relation to their activities andalso minimise withholding tax onpayments of interest to investors in thevehicles.

In particular, Ireland has emerged as thelocation of choice for US life settlementssecuritisations due to our favourable taxtreaty network which can minimise taxleakage in relation to US exit taxes.

TAX ON INDIVIDUALS

Income TaxIreland has a progressive system ofincome tax which is levied at two rates.

As of 2011, an individual is subject toincome tax at 20% on their first €32,800 ofincome, though this is typically amendedeach year by the Minister for Finance. Thisthreshold is increased when the individualis married. An individual is then liable to arate of 41% on the balance of their incomeover and above the threshold.

In addition to income tax, individuals arealso subject to two social contributions,known as the Universal Social Charge (c.7%) and PRSI (c. 4%), on their income.

Scope of Income TaxIn order to be within the charge to Irishincome tax, a person must either be

resident, ordinarily resident or domiciled inIreland.

A person will be deemed to be taxresident in Ireland if they spend:

• a total of 183 days in Ireland in any taxyear; or

• a combined total of 280 days over twotax years (assuming a minimum of 30days in each tax year).

If a person is resident in Ireland for threeconsecutive tax years, they then becomeordinarily resident for tax purposes.

An individual is deemed to be domiciledin the country in which they have theirpermanent home. Domicile is generallydetermined initially by an individual’sdomicile of origin (generally the countrywhere their father is domiciled when theyare born) and will be regarded asdomiciled in that country unless a domicileof choice is acquired.

Influence of domicile and residenceAn Irish resident, ordinarily resident anddomiciled person is liable to Irish incometax on worldwide income.

A resident and domiciled, but notordinarily resident, person is liable to Irishincome tax on Irish source income and onany other income to the extent remitted.

A resident but not domiciled person isliable to Irish income tax on Irish sourceincome and on any other income to theextent remitted.


The investment vehicle

BUSINESS STRUCTURES

Foreign direct investors may choosevarious legal entities to establish apresence in Ireland including privatelimited companies, unlimited companies,public limited companies and branches.ByrneWallace can advise on the suitabilityof each of these to the particular investorbut the most commonly used foreigndirect investment vehicle is the privatelimited company. Similar to the USCorporation, its chief advantage is thateach shareholder’s liability is limited to theamount it agreed to pay for its shares.

INCORPORATION

The incorporation process is generallyquick and inexpensive, taking between 5 -20 days and involving the filing of certaininformation with the CompaniesRegistration Office. The Memorandumand Articles of Association (similar to theUS Charter or Articles) set out thecompany's parameters and regulationsand are filed with the incorporationpapers. ByrneWallace CorporateSecretaries Limited, our Firm's companysecretarial division, provides a range ofcompany incorporation and secretarialservices to help make the incorporationand administrative process as smooth aspossible.

REQUIREMENTS

On incorporation, a private company musthave at least one shareholder, twodirectors, a company secretary , and anIrish registered office and be able todemonstrate that it will conduct businessin Ireland. Shareholders are not requiredto be Irish but at least one director mustbe an Irish resident unless an insurancebond is in place. The management of thecompany is generally entrusted to a Boardof Directors. An auditor must beappointed and the accounts must bepublicly filed each year.

The nominal share capital of a privatecompany can be as large or as small as thefounders wish and can be in any currencydenomination. There must be at least oneissued share.

Every company must appoint an auditorand must publicly file audited accountseach year. The detail required in theseaccounts varies according to the size ofthe company.

BRANCHES

An alternative to incorporation whichforeign direct investors may choose is toestablish a branch operation. Althoughgenerally not as advantageous asincorporation, branches may serve aparticular purpose. A branch has aseparate management structure whichenables it to negotiate contracts with thirdparties, and has an element of financialindependence. Foreign corporationsestablishing a branch in Ireland areobliged to register certain information withthe Companies Registration Office withinone month of establishment. Foreigncorporations with branches in Ireland arerequired to publicly file their accountseach year.


Labour

THE IRISH EMPLOYMENTENVIRONMENT

Employment law in Ireland is acombination of Irish and EU legislationcomplimented by common lawjurisprudence and Irish Constitutional law.Parties to an employment relationship arefree to negotiate and concludeagreements between themselves, subjectto compliance with certain minimumrequirements as set by law.

THE EMPLOYMENT RELATIONSHIP IN IRELAND

The employment relationship may bebroken down into three distinct stages,each involving its own specific legal issues,as follows;

Pre-EmploymentPotential employers must ensure toexercise care from the outset of theemployment relationship, beginning withadvertising and recruitment. The mostcommon pitfall in this area relates to non-compliance with equality legislation.Employers must ensure that all processesinvolved in the recruitment process,including advertising, interview andselection, are transparent and fullycompliant with equality legislation. Wherepossible, interview panels must contain agender balance, questions should beappropriate and contemporaneous notesmust be taken outlining the reasons why acandidate is ultimately successful orunsuccessful. In addition, caution must beexercised in the drafting of advertisementsas they may subsequently be found tohave formed part of the employmentcontract.

Regulation of the EmploymentRelationshipContracts of Employment:Employers are obliged by law to provideemployees with a written statement ofspecific terms of their employment withintwo months of the commencement of theemployment. While this may be regardedas being the irreducible minimum in termsof required documentation, the reality isthat the employment relationship willgenerally be governed by a moreexpansive contract of employment. Thiscontract will include both express termsand implied terms. Implied terms coverrights and obligations which are imposedon the contracting parties;

(a) by common law and which have beenfound by the Courts to apply to everycontract (e.g. the duty of mutual trustand confidence);

(b) by Statute (e.g. minimum noticeperiods);

(c) by the Irish Constitution (e.g. the rightto join a trade union)

(d) by collective agreements (e.g. levels ofovertime for a specific class of workersas negotiated by a recognised tradeunion); and

(e) by custom and practice in a particularworkplace (i.e. the practice of awardinga bonus on meeting targetsnotwithstanding that there is nocontractual right to a bonus).

Implied terms are automaticallyincorporated into an employee's contractof employment, regardless of whether ornot they are expressly included.

Minimum Requirements:Irish law provides for a minimum wage,minimum notice period, maximum

working time allowances and minimumannual leave entitlement of 20 days a year(with an additional entitlement to 9 publicholidays a year). In addition, employeesare entitled to a variety of other forms ofleave, albeit on an unpaid basis, includingmaternity leave, parental leave, adoptiveleave, carer's leave, force majeure leaveand health and safety leave. There is noentitlement to paid sick leave under Irishlaw.

Policies and Procedures:In addition to the writtenstatement/contract, an employer isobliged to put various policies andprocedures in place, such as grievanceand disciplinary procedures. Such policiesmust be drafted carefully in order toensure that they encompass fairness,transparency and the principles of naturaljustice. Such policies must be given to theemployee within 28 days of thecommencement of employment.

Health and Safety:Finally, under health and safety legislation,employers are obliged to prepare a reportconfirming how they intend to safeguardthe health, safety and welfare of itsemployees in the workplace (known as a'safety statement'). This statement shouldcover issues such as victimisation, bullyingand stress in the workplace.

Pensions and Benefits:In terms of pensions, employers who donot provide access to an occupationalpension scheme for their employeeswithin six months of the commencementof employment are obliged to provideaccess to a Standard Personal RetirementSavings Account and to facilitateemployee participation therein by makingdeductions from the payroll, on the


The total US investmentinto Ireland is greaterthan into

combined

Brazil,Russia,India &China


employee's request, in respect of theemployee's contribution to the PRSA.There is no obligation on the employer tocontribute to such PRSA.

Where an employer wishes to extend

additional benefits to its employees in the

form of bonus schemes, health/life

insurance and share option schemes, this

should also be dealt with by way of

contract.

Protection of the Employer's Interests:Where an employer is concerned toprotect its business and goodwill in theevent that key personnel decide to leavetheir employment, a restraint of trade/nonsolicitation clause should be included inthe employment contract. Caution mustbe exercised in the drafting of suchclauses however as the Courts will onlyuphold such clauses insofar as they arenecessary to protect the legitimatebusiness interests of the employer.

Our employment law team has a wealth ofexperience in the drafting of contracts ofemployment, workplace handbooks,policies and procedures and will be happyto advise you on any of your draftingrequirements.

Post-Employment

Data Protection and Retention of Records:Following the termination of employment,employers are obliged to retain certainpersonnel records of the departedemployee for a specified period of time.Any information which is collected,processed and/or retained by or on behalfof an employer on its employees isprotected by Data Protection legislationand employers must ensure that it is heldin a safe and secure manner andprocessed in compliance with the DataProtection Acts.

Aggrieved Employees:The termination of an employment

relationship may be amicable or

acrimonious. A plethora of fora is

available to an aggrieved former, and at

times existing, employee under Irish law,

including the Rights Commissioner

Service, the Equality Tribunal, the Labour

Court, the Employment Appeals Tribunal

as well the Courts system itself. Generally

speaking, the keys to ensuring a secure

defence against such actions are

workplace policies and procedures which

have been properly drafted, fully

implemented and correctly utilised by the

employer.

At ByrneWallace, we have extensive

experience in advising and representing

clients at all levels of litigation. We can

also offer advice in relation to alternative

dispute resolution and the various

mechanisms which may be utilised to

settle disputes where parties wish to avoid

contentious litigation.

OTHER ISSUES

EqualityEmployment in Ireland is subject toequality legislation and discrimination onthe grounds of age, gender, disability,race, religious belief, sexual orientation,marital status, family status or status as amember of the Traveller community isprohibited throughout all stages of theemployment relationship.

Trade Unions and Industrial RelationsWhile the Irish Constitution enshrines theright of the employee to join a tradeunion, there is no correspondingobligation on an employer under Irish lawto recognise that trade union, save in veryspecific circumstances where it has eitherbeen the established practice of theemployer to recognise a trade union orwhere a business transfer has occurredwhich falls within the remit of theEuropean Communities (Protection ofEmployees on Transfer of Undertakings)Regulations 2003.

In a non-unionised workforce, it isrecommended that some mechanism isput into place to facilitate the resolution ofdisputes directly between employer andemployees. Either party to a dispute mayrequest the assistance of the Labour Courtwhich may provide guidance on thematter as well as offer various servicesincluding mediation and conciliation.Depending on the size of the workforce,employers may be obliged to consult with,and inform, employees about variousissues which may impact on theiremployment.

At ByrneWallace, our employmentpartners possess expertise in the areas ofequality law and industrial relations lawand can offer proactive and practicaladvice in these areas to any entityconsidering the establishment of anoperation in Ireland.


Atypical EmployeesIrish law also provides for atypical workingarrangements such as part-timeemployment, fixed term employment,agency/relief work and outsourcing. Inaddition, some employers facilitate flexibleworking arrangements including jobsharing and e-working.

Immigration, Work Permits andSecondmentAn entity wishing to set up an operatingbase or branch in Ireland may wish totransfer employees from an alreadyestablished company for the purposes ofestablishing the new Irish base. In thecase of employees who are not Irishcitizens, Irish immigration law must becomplied with and applications forresidency and/or work permits may berequired. Various types of work permitsare available and, for companies wishingto transfer employees between offices, anIntra Company Transfer Permit is usuallythe most suitable, providing thequalification criteria have been met. Inaddition, employers may wish to establisha secondment policy to facilitate thetemporary transfer of employees betweenoperations.

Protection of Employees on Transfer ofUndertakings RegulationsWhere it is intended to invest in, orpurchase, an established Irish business,consideration must be given to theEuropean Communities (Protection ofEmployees on Transfer of Undertakings)Regulations 2003. Pursuant to thislegislation, a transfer of undertakingoccurs where (i) there is a change inemployer as a result of a legal transfer ormerger; (ii) following the transfer, thebusiness of the operation is continued onby the new employer; and (iii) the businessis transferred as a 'going concern'. Wherethese criteria are satisfied, the legislationprovides that the new employer is legallyobliged to take on the existing employeesof the business. The terms and conditionsunder which those employees areengaged transfer automatically to the newemployer (with the exception of pensionentitlements) and there is no break incontinuity of service from the employees'point of view.

ByrneWallace can help an individual orcompany intending to invest in Ireland toidentify the full extent of issues which willrequire addressing in order to ensure asmooth transition. We can assist with theprocessing of immigration documentationand work permits and also provide inhouse training and seminars to HR teamswho may be new to the Irish employmentmarket as well as those simply wishing toimprove on their knowledge in the area.


There are two main activities: (a) buyingand selling property; and (b) occupationalleasing. Neither of these transactions areeffected electronically although work ispresently underway to establish a system ofe-Conveyancing in the short to mediumterm.

BUYING AND SELLING PROPERTY

Title and OwnershipTitle to Irish real estate can either beacquired outright by acquiring the freeholdinterest or by acquiring a long leaseholdinterest with a term usually in excess of 200years subject to a nominal rent with acapital premium paid at the outset andsubject to certain limited covenants on thepart of the "tenant". Title insurance is rarelyused save where title is investigated andfound to be defective.

RegistrationTwo systems of registration of real estateexist namely: (a) the Property RegistrationAuthority (formerly Land Registry) titles("Registered"); and (b) the Registry ofDeeds titles ("Unregistered").

Title to Registered land is evidenced byone document issued by the Land Registryknow as the "folio" which is Stateguaranteed (save in respect of mapping) asthe Property Registration Authorityinvestigate title to the property prior toregistering same.

Title to Unregistered land is evidenced bytitle deeds showing the devolution of titlefrom one party to another over a numberof years. At least fifteen years good andmarketable title must be evidenced.

Title in urban areas tends to beunregistered with the majority of ruralproperty being registered. All counties ofIreland – other than Dublin and Cork – arewithin areas of compulsory registration.

It is hoped that all land will be Registeredin the coming years, a necessary precursorto the introduction of e-conveyancing.

Due Diligence and Contract for SaleThe commercial terms of the sale ofproperty are usually negotiated by realestate agents and once settled referred toreal estate lawyers acting for the vendorand purchaser. It is the obligation of thevendor's solicitor to draw up the Contractfor Sale and demonstrate the ability of theirclient to deliver "good and marketabletitle" to the subject property.

The Contract for Sale will not only deal withtitle matters but also planning, taxation andthe condition of the property.

Before the Contract for Sale is signed thereal estate lawyer acting for the purchaserwill carry out a due diligence designed toensure that not only does the vendor havetitle to the subject property but also thatthere has been compliance with statute andthat there are no liabilities attaching to theproperty which would pass with the title tothe purchaser.

While the vendor will usually disclose anyimperfections, the principle of "caveatemptor" (let the buyer beware) applies withthe obligation on the purchaser to makeadequate enquiries in relation to both legaland regulatory matters and to physicallyinspect the subject property.

The transfer of the title usually occurs withinsix weeks of the execution of the Contractfor Sale. In certain cases completion of thetransaction is postponed or conditionedupon the occurrence of certain events (eg)the purchaser procuring planningpermission for the property, developmentfinance to construct a building or procuringstatutory body (e.g. IDA) or bank consent tothe disposal of the asset.

Real estate

Ireland is a commonlaw jurisdiction. The acquisition,development andoccupation of realestate in Ireland isgoverned bylegislation, case lawand contract lawprinciples. There are no particularrestrictions on non-Irish or EU persons orbodies acquiring orleasing real estate inIreland.


On execution of the Contract for Sale a10% deposit is paid with the balancepayable on the closing date. The depositis usually held as stakeholder by the lawyeracting for the vendor and it is usuallyrefundable in nature where the transactiondoes not proceed for reasons other thanthe default, neglect or delay of thepurchaser.

OCCUPATIONAL LEASING

Businesses in all sectors occupy lands andbuildings in pursuance of occupationalleases with a large number of retail, officeand industrial developments constructed inthe past ten years. It is unusual for buildingsto be occupied under licence save for verylimited purposes (e.g. seasonal trade) or inretail outlet parks.

TermOccupational leases terms are typicallybetween five and twenty five years. Recentstatutory changes (both VAT and Landlordand Tenant rights) and increased tenantbargaining power in a depressed markethas created greater flexibility forprospective occupiers. Ireland has not yetadopted the Eurpean model of short leaseterms. Irish business leases often give bothlandlords and tenants security of tenureand an opportunity for both to recover theirrespective capital investments. Increasingly,tenants are negotiating "break clauses"giving them the option to terminate theirleases after the fifth, tenth or fifteenthyears, depending on the duration of theinitial term.

ObligationsThe typical Irish occupational lease is whatis known as an "FRI" or full repairing andinsuring lease with the obligation on theTenant to repair and to pay for theinsurance in respect of the premises andalso containing a lengthy list of positive and

“ Landlords and tenants areincreasingly focused oncommitments towards energyefficiency, carbon reduction, use of renewable energy, wastereduction and water use reduction”


negative covenants on the part of thetenant including: the obligation to payrent; maintain and repair the premises;limitations on the permitted use;restrictions on alienation and alterations;agreement on the condition to which thepremises must be restored ondetermination of the lease.

Rents and Service ChargesRental levels have fallen in recent years andrents are negotiated and agreed by realestate agents. Turnover rents areincreasingly prevalent in high-turnoverretail locations. In multi-occupieddevelopments service charge andinsurance contribution are typically payablein addition to rent and calculated on a pro-rata basis.

Rent ReviewSince the 1960's practically every Irishcommercial lease for a term in excess offive years contained a five yearly "upwardsonly" rent review clause. Such clausesprovided that the rent first reserved wouldbe reviewed every five years to the higherof the rent payable immediately before thereview or the open market rent at the dateof the review.

Section 132 of the Land and ConveyancingAct 2009 provides that rent review clausesin leases granted after the 28February 2010be interpreted as reviewing rents to openmarket value introducing the possibility ofdownward movement on review for thefirst time in many years. The provision isnot retrospective in as much as it does notapply to existing arrangements on thatdate, thus creating a two tier system.

Green Leases – landlords and tenants areincreasingly focussed on commitmentstowards energy efficiency, carbonreduction, use of renewable energy, wastereduction and water use reduction as thecost of such items escalates and it wouldnot be unusual to see leases addressingthese issues.

TAXATION

Stamp DutyA tax on deeds and instruments, StampDuty is payable by the purchaser ofproperty on the purchase price of theproperty. The top rate of Stamp Duty oncommercial property is currently six percent of the consideration paid or themarket value whichever is higher. StampDuty is also payable on occupationalleases by the tenant at a rate of onepercent of the annual rent.

Value Added Tax (VAT)In certain circumstances VAT is payablewhen purchasing property and is alsocharged in many cases on rents payablepursuant to commercial leases.

The VAT regime was extensivelyoverhauled in 2008. Where chargeable onan acquisition the current relevant rate ofVAT is 13.5% of the purchase price.Whether or not VAT is chargeable willdepend on the age of the property,whether it has been developed orredeveloped (as defined in the VAT Acts)and the use to which it is put.

In relation to commercial rents, if thelandlord "opts to tax" the Lease then VATis payable at the current rate of 21% on therents payable. It is unusual for a landlordnot to opt to tax as he most likely will havereclaimed VAT in the course ofdevelopment giving rise to a potential clawback if he does not opt to tax.

VAT registered entities can reclaim VATpaid and it is important for any newenterprise to process its VAT registration ina timely fashion.

PLANNING AND ENVIRONMENTAL

Planning Permission is required beforebuildings can be constructed, significantlyaltered or the use of same changed.Applications are made to the relevantLocal Authority with a right of appeal to AnBord Pleanala (the appeals board). Aplanning application is a public processaffording members of the public a right tomake observations and objections.Planning Permission will take at least threemonths to procure; however this processcan take significantly longer if there is athird party objection and/or an appeal orreview.

Each Local Authority is required to devise aDevelopment Plan at regular intervals inwhich areas are zoned for particular uses tofacilitate the orderly development ofregions and ensure that adequateinfrastructure is available to support suchdevelopment. Planning Permissions mustbe in accordance with the DevelopmentPlan.

All works (including internal non-structuralworks) must be carried out in accordancewith the Building Regulations whichregularise construction standards, energyefficiency, fire safety requirements anddisabled access to premises amongstother matters.

EU legislationAn extensive and ever-increasing numberof EU directives now form part of Irishdomestic law. The EnvironmentalProtection Agency of Ireland (EPA), theDepartment of the Environment and LocalAuthorities all play a role in sanctioningand controlling activities likely to impact onthe environment through assessment ofenvironmental impact statements,planning conditions and IPC licences.


Intellectual property

The key areas of IP protection available inIreland are generally considered to bepatents, trademarks, copyright anddesigns. However, in addition to theseareas, Irish law also effectively protectsother forms of intellectual property, suchas domain names, databases, customerlists and computer software. Ireland alsohas a well developed data protection ande-commerce regime.

ACQUISITION OF INTELLECTUALPROPERTY RIGHTS

PatentsPatent protection is a very strong form ofprotection for inventions, as it offersmonopoly rights to owners of inventions ina defined territory. The Irish patent systemis governed by the Patents Act 1992 andthere are two types of patent protectionavailable under that Act: (1) a full-termpatent and (2) a short-term patent. Theduration of the full-term patent is 20 yearsfrom the date of filing, provided thatannual renewal fees are paid and thepatent is not revoked at any stage. Theterm of a patent can be extended via asupplementary protection certificate for amaximum of five years where the patent isfor a medicinal product for human oranimal use or for plant production

products. The period of protection for ashort-term patent is 10 years and as withfull-term patents supplementaryprotection certificates may be obtained.

Ireland is also a member of the EuropeanPatent Organisation and has ratified thePatent Co-Operation Treaty (PCT). Whengranted, a European Patent has the effectof a national patent in each of thecountries designated. A European Patentdesignating Ireland therefore has the sameeffect as if it were a full-term patentgranted by the Irish Controller of Patents.

The PCT provides a system whereby asingle international application allows forthe designation of some or all thecontracting countries. A PCT applicationrequesting patent protection in Ireland isdeemed to be an application for aEuropean patent for Ireland.

Trade MarksTrade marks are protected under Irish lawunder the Trade Marks Act 1996 and alsoat common law by way of action forpassing off. A trade mark registeredunder the 1996 Act confers on theproprietor exclusivity of rights and there isno requirement to prove a reputation inorder to obtain registration.

Registration is initially for a period of tenyears (from the date of filing of theapplication) and it can subsequently berenewed every ten years on payment ofthe renewal fee, with the potential to lawindefinitely.

Ireland is party to the Community trademark system, and an applicant may applythrough the Irish Patents Office for aCommunity trade mark which, ifregistered, will take effect throughout the27 EU Member States. Ireland has alsoratified the Madrid Protocol which governsinternational trade mark registrations. Aninternational registration produces thesame effects as a separate application fornational registration of the mark made ineach of the Countries designated by theapplicant.

DesignsIreland has implemented Europeanharmonising legislation in relation toregistered industrial designs via theIndustrial Designs Act 2001. Registrationconfers an exclusive right to authoriseothers by means of licensing to use thedesign. The legislation provides that adesign that is new and has individualcharacter may be registered.Manufacturers are allowed a 12 month

Intellectual property (IP) is often an organisation's most valuableasset. For companies with an extensive IP portfolio, Ireland is anideal location for their intellectual property, both from a regulatory /legal perspective as well as a tax perspective. The Irish legal andtax regimes offer a highly effective and efficient means of enhancingresearch and development opportunities for IP and for exploitingand protecting this intangible asset.


grace period within which they can make adesign available to the public withoutdestroying its ‘novelty’ and thereby theprospects of registering it at a subsequentdate. This allows designers to test thesuccess of products on the market beforeembarking on the registration process.

When a design is registered, protection isgranted initially for 5 years. Protection canthen be renewed for four further periodsof five years each (on payment of theprescribed fee), giving a maximum of 25years' protection from the date ofregistration.

The Community unregistered design rightregime came into effect in Ireland on 6March 2002. This unregistered right issimilar to copyright in that no registrationrequirement must be satisfied and theright comes into existence automatically.The Community unregistered design rightlasts for 3 years from the date on whichthe design is first made available to thepublic within the EU.

CopyrightThe Irish Copyright and Related Rights Act,2000, is recognised as one of the mostsophisticated pieces of legislation in thisfield in Europe. Copyright protects originalliterary, dramatic, musical and artistic works,as well as film, sound recordings, broadcastsand the typographical arrangement ofpublished editions, moral rights in suchwork, computer software and originaldatabases, and performances andperformer’s rights.

There is no system of registration forcopyright protection in Ireland and this formof protection arises automatically on thecreation of an original work, provided that ithas resulted from the creator’s skill and effortand is not simply copied from another work.

In most cases, copyright lasts for thecreator’s lifetime plus 70 years, althoughthe duration of protection does dependon the nature of the work for whichprotection is sought. Ireland is a signatoryto the Berne Convention for the Protectionof Literary and Artistic Works whichrequires its signatories to recognise thecopyright of works of authors from othersignatory countries (known as members ofthe Berne Union) in the same way as itrecognises the copyright of its ownnationals.

Database RightsCopyright subsists in original databasesand the period of protection lasts until 70years after the death of the author. TheCopyright and Related Rights Act, 2000,introduced a new form of copyrightprotection available where there has beena substantial investment made inobtaining, verifying or presenting thecontents of a database. This databaseright expires 15 years from the end of thecalendar year in which the making of thedatabase was completed. However, adatabase which is continually updatedcould have the benefit of protection underthis new database right indefinitely.

EXPLOITATION OF INTELLECTUALPROPERTY RIGHTS

From a legal perspective, owners of IPrights are generally free to exploit theserights under the principle of freedom tocontract, although Irish and EuropeanCommunity competition law will berelevant in certain circumstances.

ENFORCEMENT OF INTELLECTUALPROPERTY RIGHTS

One of the most attractive features ofIreland's IP regime is the disputeresolution mechanism available to ownersof intellectual property rights who wish toenforce those rights. The Irish High Courthas a dedicated forum, the CommercialCourt, for resolving commercial disputes,including IP disputes. The CommercialCourt was established in 2004 and is oneof the most innovative developments inthe Irish IP legal landscape in recent times.

This Court provides a condensedprocedure for enforcement of IP rights. Forparties wishing to expedite matters andobtain an early and informed decision, it isadvantageous to enter the case in theCommercial Court list. The efficiency ofdisposal of cases and the quality ofjudgments of our Commercial Court havebeen recognised internationally. Thethreshold of €1 million that a case mustnormally meet in order to be eligible forthe Commercial Court does not apply tocases involving IP rights, meaning that thecourt has jurisdiction over the majority ofIP disputes.

The EU-wide directive on enforcement ofintellectual property rights wasimplemented in Ireland in 2006, andcomplements the comprehensive range ofenforcement tools and reliefs available tothose seeking to enforce their IP rightsthat were previously generally availableunder Irish law.


Some of the world's leading technology companies such asMicrosoft, Dell, Google and Facebook have chosen to locateoperations in Ireland due to the favourable conditions forinvestment. Ireland has succeeded in attracting such technologycompanies not only due to the attractive tax benefits but also dueto the access to an educated and skilled workforce and afavourable regulatory regime for the creation and exploitation ofintellectual property.

Technology

DATA PROTECTION

Ireland had one of the earliest dataprotection legislative regimes in Europe.The Data Protection Acts 1988 and 2003are the principle pieces of legislationgoverning the area of data protection inIreland. The Acts specify the dataprotection principles which must becomplied with when personal data isbeing processed. Different provisionsapply depending on whether the personaldata being processed is classed assensitive or non-sensitive data. Duties ofdata controllers and data processors arealso set out in the Acts.

Certain rights are conferred on datasubjects including the following: the rightto be informed of data being kept; theright to prevent data being used for thepurpose of direct marketing; the right toaccess personal data; the right to changeor remove details; and the right to preventuse of personal details.

The Acts also contain restrictions on thetransfer of personal data by a datacontroller to a country outside of theEuropean Economic Area (the "EEA") andprovides that such a transfer may not takeplace unless that particular country or

territory ensures an adequate level ofprotection for the privacy of its datasubjects in relation to the processing oftheir personal data. There are also anumber of ways to transfer data to"unapproved states" such as using theSafe Harbour Principles or using a specialEU approved model contract.

E-COMMERCE

Ireland was one of the first countries in theEU to pass legislation providing for aframework to encourage and facilitate thegrowth of electronic commerce andelectronic transactions in Ireland. TheElectronic Commerce Act 2000 providesfor the recognition of electronic contracts,electronic signatures and also givesadmissibility to electronic informationgenerally. The Act also addresseselectronic originals, the retention ofelectronic documents and the admissibilityof electronic evidence in courts. Inaddition, the Act provides for theaccreditation and supervision ofcertification service providers and alsocontains provisions dealing with theirliability.

Ireland has a comprehensive legislative e-

commerce regime derived from EU lawand Ireland has implemented numerousEU Directives in this area, including thefollowing:

(i) Electronic Signatures Directive(1999/93/EC);

(ii) Electronic Commerce Directive(2000/31/EC);

(iii) Distance Selling Directive (97/7/EC);

(iv) Electronic Money InstitutionsDirectives (2000/28/EC and2000/46/EC).

The Electronic Commerce Regulations2003 implemented the remainingprovisions of the Electronic CommerceDirective which had not beenimplemented by the Act. It applies toalmost all organisations who offercommercial services to customers online. Itprovides that certain information must beprovided by an online service provider in amanner which is easily, directly andpermanently accessible to recipients of aservice.

The Distance Selling Directive aimed toharmonise laws in respect of distancecontracts for consumers throughout theEU, substantially increasing protection for


consumers. The Distance Selling Directiveprovides that certain prior informationmust be supplied by the supplier and italso provides details of the cooling offperiod and confirmation of the contractterms. The requirements of the ElectronicCommerce Regulations and the DistanceSelling Directive can be met by havingappropriately drafted terms andconditions.

CLOUD COMPUTING

Ireland is home to a high concentration ofdata centres through which technologygiants such as Microsoft, Vodafone,Google, EMC, Yahoo! and Amazon WebServices drive most of their traffic and hostthe majority of their services for Europe.The key factor for choosing to locate hereis Ireland's ambient climate which meansthat many data centres do not have to usetheir cooling equipment for much of theyear, which results in a substantial savingfor the data centre owners. Otherinfluential factors are Ireland's geologicalstability, proximity to high-speed fibreoptic communications networks andaffordable energy rates. As a result Irelandis ideally placed as a European base forcloud computing activities of companies.

Data Protection and Data SecurityTwo of the most important issues arisingfrom the fact that cloud computingtranscends national borders concerncompliance with national data protectionlaws and the security of the data that isplaced in the cloud. As detailed abovethere is a well established body of law atEuropean and domestic level setting outthe data protection obligations ofcompanies in relation to personal datathey control and process. Generally the

customer will be responsible forcompliance with the Data Protection Acts(as the data controller), but should ensurethat:

• the supplier takes appropriatetechnical and organisational measuresto protect the data and to keep itsecure;

• the contract with the supplier includesappropriate terms controlling what thesupplier may and may not do inrespect of the data; and

• any transfer of data outside the EEA isdealt with appropriately.

Where the cloud computing modelinvolves passing personal data to a thirdparty, the Data Protection Acts prohibitcompanies from doing so unless there areadequate measures in place to protectpersonal data. Many data centres that areused to host services are located outsidethe EEA and as mentioned abovepersonal data cannot be transferredoutside of the EEA unless strict conditionsare met. Many international cloudcomputing service providers are nowpublicising their moves to establish datacentres within Ireland because the onus onthe customer to comply with dataprotection legislation is reduced.

Other legal issues with regard to cloudcomputing which need to be addressedare data security, liability for service failure,licensing issues, jurisdictional issues andthe ability to recover data stored orprocessed in the cloud.


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"


Competition and antitrust

Ireland'scompetition, or anti-trust, regime isgoverned by theCompetition Acts2002 and 2006. TheAct provides for bothcivil and criminalsanctions againstboth businesses andexecutives, wherethey breachcompetition law.The IrishCompetitionAuthority isresponsible for theenforcement of bothIrish and EUcompetition law inIreland, with EUcompetition lawapplying to practiceswhich have an affecton inter-state trade,within the EuropeanUnion.

Enforcement and administration of theCompetition Acts, 2002 and 2006 (Act) isthe responsibility of the CompetitionAuthority. Whilst the ICA can investigateanti-competitive conduct and secureundertakings from businesses to desistwith anti-competitive conduct, only theIrish Courts may awarddamages or impose fines for anti-competitive practices.

ANTI-COMPETITIVE AGREEMENTS

Section 4 of the Act governs anti-competitive arrangements and ismodelled on Article 101 of the Treaty onFunctioning of the European Union (TFEU).Both the Competition Authority and IrishCourts apply EU competition law, as wellas domestic competition law, in Ireland,where the result of any agreement orpractice has an affect of trade betweenMember States (of the EU).

Section 4 prohibits anti-competitivearrangements between undertakings,decisions by associations of undertakingsand concerted practices involvingundertakings which prevent, restrict ordistort competition in Ireland or any part ofIreland, unless they comply with certainspecific conditions set out in Section 4 ofthe Act or are the subject of a declaration(see Vertical Restraints below at Sect 7, foran example of a declaration).

Section 4(5) of the Act sets out theconditions which must be fulfilled for anindividual agreement to benefit from theexemption. These are:

• the arrangement must contribute toimproving the production ordistribution of goods or the provisionof services or to promoting technical oreconomic progress

• the arrangement must allowconsumers a fair share of the resultingbenefit

• the arrangement must not impose onthe undertakings concerned any termswhich are indispensable to theattainment of those objectives

• the arrangement must not affordundertakings the possibility ofeliminating competition in respect of asubstantial part of the product orservices in question.

ABUSE OF DOMINANCE

The provision of the Act relating to abuseof dominance is primarily based on Article102 of the TFEU. The Act prohibits theabuse of dominance by any undertakinghaving a dominant position in Ireland or inany part of Ireland. The Act does not seekto define an abuse of a dominant position,but it does indicate that the followingmatters may be regarded as an abuse:

• directly or indirectly imposing unfairpurchase or selling prices or otherunfair trading conditions

• limiting production, markets ortechnical development to theprejudice of consumers

• applying dissimilar conditions toequivalent transactions with othertrading parties thereby placing them ata competitive disadvantage

• making the conclusion of contractssubject to the acceptance by otherparties of supplementary obligationswhich by their nature or according tocommercial usage have no connectionwith the subject of such contract.

Examples of abuse of dominance includepredatory and discriminatory pricing,refusal to supply, margin squeeze, andtying /bundling, amongst others.


RIGHT OF ACTION & IMPOSITIONOF PENALTIES

In serious cases, such as price fixing, wherean agreement is found to breachcompetition law, it will be void (i.e. legallyunenforceable) as a matter of law. Otherpenalties include (a) fines of up to thegreater of 4 million or 10% of world-wideturnover on the undertakings in breach ofeither of these provisions and on theofficers of such undertakings (e.g.directors, managers); as well as (b) civilsanctions on undertakings and theexecutives of undertakings in breach ofthe Act. In addition, a finding of theexistence of an anti-competitivearrangement may result in criminalsanctions, with potential imprisonment ofofficers of the undertaking for up to fiveyears in the event that cartel offences havebeen committed (e.g. price fixing).Criminal actions for breaches of the Actare taken by the Director of PublicProsecutions, with a number of successfulconvictions having been secured in recentyears.

An aggrieved party, who has suffered as aresult of any action prohibited under theAct, has a right of civil action for relief.Under the Act, a Court may grant either aninjunction restraining the continuance ofthe matter complained of or impose adeclaration, along with granting damages(including exemplary damages). Wherethe court has decided that an undertakinghas abused its dominant position contraryto the Act, it may also require thedominant position to be discontinued oradjusted, for example, by ordering thedominant undertaking to divest assets.

ENFORCEMENT BY THEAUTHORITY

The Competition Authority enjoys far-reaching enforcement and investigativepowers under the Act, including the abilityto conduct dawn raids on companies inIreland, where it has reason to believe thatevidence may exist in relation to anti-competitive practices. As part of thedawn-raid process (covered by anappropriate search warrant), the Authoritymay search executives' homes and cars, inaddition to business premises, with theability to seize documentation. TheAuthority may also summon executives /individuals to provide evidence on oathand produce documents relating toalleged anti-competitive practices.

IRISH MERGER REGIME

A notifiable merger arises once control(essentially the capability of exercisingdecisive influence) over an undertaking isacquired, regardless of how such control isacquired. Asset acquisitions, as well as fullfunction joint ventures, are also notifiable.

It is mandatory under the Act forundertakings to notify the CompetitionAuthority of any merger or acquisition

which exceeds the relevant thresholds.Those thresholds being:

• the world-wide turnover of each of twoor more of the undertakings involvedin a merger must be not less than €40million; and

• each of two or more of theundertakings involved in the mergermust carry on business in any part ofthe island of Ireland (includingNorthern Ireland); and

• the turnover in Ireland of any one ofthe undertakings involved in themerger must be not less than €40million.

The Authority has issued a guidance note,clarifying the term "carrying on business"to mean either where: a) the company hasa physical presence on the island (such asa registered office, branch or agency) andsales and/or supply of services tocustomers on the island of Ireland; or, b)where the company has sales into theisland of Ireland of at least €2 million in themost recent financial year.

Where the above thresholds are not met,but the merger gives rise to seriouscompetition concerns, the parties mayvoluntarily notify the transaction to theAuthority, for its assessment. This gives theparties legal comfort that, once cleared bythe Authority, the transaction will not beinvestigated under either Section 4 or 5 ofthe Act, if implemented.

The test applied by the Authority iswhether the merger or acquisition wouldsubstantially lessen competition in Irishmarkets for goods or services.

Failure to notify a notifiable merger is anoffence, punishable by a fine of up to€250,000. Where a notifiable merger isimplemented without being cleared bythe Authority, the merger is void as amatter of Irish law.

COMPETITION AUTHORITYDECLARATION ON VERTICALAGREEMENTS

The Competition Authority's Declarationin Respect of Vertical Agreements andConcerted Practices of 1 December 2010,provides a safe-harbour for verticalagreements, including exclusive andselective distribution agreements, thatgives legal comfort to suppliers andbuyers that relevant vertical agreementsdo not breach the prohibition of Section4(1) of the Act, subject to certainconditions being met, including:


1) That the market share of the supplierdoes not exceed 30% of the relevantmarket on which it sells the contractedgoods / services, and that the marketshare of the buyer does not exceed30% of the relevant market on which itpurchases the contracted goods;

2) That the agreement does not restrictthe buyer's ability to determine its saleprice (Resale Price Maintenance),without affecting the supplier's abilityto recommend a sale price or imposea maximum sale price;

3) That the agreement does not imposeterritorial restrictions on the buyer'sability to sell the contract goods orservices, subject to certain exemptionssuch as;

– allowing the restriction of activessales into the exclusive territory orto an exclusive customer group

reserved for the supplier orallocated by the supplier to theanother buyer;

– restricting sales to end users by abuyer operating at the wholesalelevel of trade;

– restricting sales by members of aselective distribution system tounauthorised distributors within theterritory reserved by the supplier tooperate the system;

4) That the agreement does not restrictactive or passive sales to end users bymembers of a selective distributionsystem operating at retail level oftrade;

5) That any direct or in-direct non-compete obligation, is not of indefiniteduration and does not exceed fiveyears.

A "non-compete" obligation is defined asany direct or indirect obligation causingthe buyer not to manufacture, purchasesell or re-sell goods or services whichcompete with the contract goods orservices, or any an obligation on the buyerto purchase from the supplier more than80% of the buyer's total purchases of thecontract goods or services (and theirsubstitutes). A non-compete which istacitly renewable beyond a period of 5years is deemed to be of "indefinite"duration.

In the Authority's opinion, verticalagreements, that meet the conditions ofits Declaration, comply with the conditionsof Section 4(5) of the Act (as per Section 2above).

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OVERVIEW

The Central Bank of Ireland (the CentralBank) is the entity with overallresponsibility for the regulation andsupervision of financial services providers,such as banks, insurers and investmentfirms, operating in Ireland. In addition toits supervisory and oversight roles, theCentral Bank is tasked with ensuring thestability of the Irish financial system overall.The regulatory provisions applicable atnational level are, to a large extent, drivenby European Union measures which aredesigned to enhance the concept of thesingle market and facilitate cross-borderestablishment and provision of serviceswithin the European Union.

AUTHORISATION ANDOWNERSHIP OF CREDITINSTITUTIONS/BANKS

In order to provide banking services inIreland an undertaking must, subject tocertain exemptions, be the holder of alicence from the Central Bank of Ireland orbe authorised in a member state of theEuropean Union pursuant to theapplicable banking directives and havepassported its services into Ireland.

The application process is detailed andcan take in excess of twelve months frominception, depending on the track recordof the applicant institution. Anundertaking must establish appropriatepolicies and procedures relating tofunding their activities relative to the sizeand the nature of its assets in order toobtain a licence from the Central Bank. Anundertaking must also meet minimumcapital requirements and ensureappropriate levels of liquidity. Particularemphasis will be placed on the structureand composition of the board and senior

management. In this regard, a newCorporate Governance Code for CreditInstitutions and Insurance Undertakingswas introduced in 2010 which sets outprescriptive measures for the minimumstandards that Irish banks, among others,are expected to satisfy.

INVESTMENT FIRMS

The Markets in Financial InstrumentsDirective (the MiFID Directive) came intoeffect in November 2007. The MiFIDDirective introduced the concept of aharmonised set of rules across theEuropean Union governing theorganisation of the business of aninvestment firm necessary to obtain anauthorisation, and rules governing theconduct of an investment firm’s investmentbusiness activities. The MiFID Directivehas been transposed into Irish law by theEuropean Communities (Markets inFinancial Instruments) Regulations, 2007(as amended) (the MiFID Regulations).The Central Bank is responsible for theregulation and supervision of MiFID firms(investment firms) in Ireland.

Investment firms offering financial servicesto clients or customers located within theEEA are potentially affected by the MiFIDDirective, either directly or indirectly. TheMiFID Regulations provide that any partythat proposes to act as an investment firmin Ireland must be either authorised by theCentral Bank to do so or authorised to doso under the MiFID Directive by thecompetent authority in another MemberState (by way of passport).

If an undertaking's occupation or businessis the provision of one or more investmentservices to third parties on a professionalbasis, or the activity of dealing on ownaccount on a professional basis, relating to

financial instruments then that undertakingwill be considered to be an investmentfirm for the purposes of the MiFIDRegulations.

Broadly speaking, the types of firm likelyto fall within MiFID's scope include:

• retail banks;

• investment banks;

• portfolio managers (excluding firmsacting as managers of collectiveinvestment schemes);

• stockbrokers and broker-dealers;

• many futures and options firms;

• corporate finance firms;

• wholesale market brokers;

• operators of Regulated Markets andMulti-lateral Trading Facilities;

• providers of custody services; and

• commodities and venture capital firms.

The MiFID Regulations exempts a varietyof entities from the requirement to obtainauthorisation under the MiFID Regulations(including insurers, entities who provideservices exclusively to group entities,investment funds and pension funds andtheir managers and depositories, variouspublic bodies etc.) There are otherexemptions for investment firms whichcarry on certain own account dealingactivities.

INVESTMENT INTERMEDIARIES ACT, 1995

While the MiFID directive replaced andrepealed, at European Union level, theprovisions of the Investment ServicesDirective (ISD), the InvestmentIntermediaries Act 1995, as amended (IIA),which implemented the ISD into domesticIrish legislation, has not been repealed.An entity considering transacting business

Credit institutionsand banking


“ Ireland was ranked 10th worldwide for thenumber of jobs created in business supportservices, including call centers, shared servicescenters and business outsourcing in a studyundertaken by IBM highlighting the role offoreign direct Investment”


in Ireland must therefore consider thepotential application of both the MiFIDRegulations and the IIA to its business.

A different regulatory regime will apply toa firm depending on whether it offers anIIA service or a MiFID service and it is mostimportant to note that the definitions of“investment services” and “financialinstruments” under MiFID are of“investment business services” and“investment instruments” under the IIA.

If your business involves the provision of“investment business services” orprovision of services relating to“investment instruments” under the IIA,further authorisation as an investmentbusiness firm under the IIA will berequired.

THE PASSPORT CONCEPT

Directive 2006/48/EC provides that anycredit institution authorised by the relevantsupervisory authority of an EU memberstate (the Home State), can do business inany other Member State without obtaininga licence/authorisation from thesupervisory authority of that member state(the Host State). The licence/authorisationissued by the Home State essentiallyconstitutes a "passport" to operate withinspecified parameters in the Host State.Having passported in, the bank may (i) setup a branch in the Host State; or (ii)provide banking services in the Host Statewithout formally establishing a branch inthe Host State, depending upon thescope of their application. Theauthorisation must address all the of theapplicant's relevant proposed activities.

The credit institution must lodge certaininformation with the national supervisoryauthority of its Home State, which will benotified to the Host State regulator. Theposition of the Central Bank is that therelevant institution should not carry onbusiness in Ireland (as the Host State) untilthe Central Bank has received notificationfrom the Home State. Once thenotification is received, the relevant creditinstitution is placed on a list of authorisedentities and can start to do business inIreland.

In addition, the MiFID Directive improvedthe operation of the ‘passport’ forinvestment firms by more clearlydelineating the allocation ofresponsibilities between Home State andHost State for passported branches andgenerally clarifying some of thejurisdictional uncertainties that aroseunder the ISD.


Investment funds

OVERVIEW

Ireland is recognised globally as one of theleading jurisdictions for the establishmentand administration of investment funds.The range and flexibility of the legalstructures which are available hasfacilitated the growth of funds aimed atinvestors with varying investment criteria ina multiple of jurisdictions. Ireland enjoys areputation as a centre of excellence bothfor promoters looking to establish fundsand for the servicing of investmentvehicles domiciled in other jurisdictions.

THE REGULATORY AUTHORITIES

The Central Bank is responsible for theauthorisation and ongoing regulation ofinvestment funds in Ireland. It is also thesupervisory authority for the authorisationand regulation of providers of investmentservices in Ireland which services includegiving of investment advice, provision offund administration and custodial servicesand receiving, transmitting and executingorders in relation to securities.

The Irish Stock Exchange Limited (the ISE)is responsible for the listing of investmentfunds in Ireland. In order to list, a fundmust first appoint a Sponsor, which isregistered with the ISE. The Sponsor isresponsible for ensuring that the fund issuitable for listing and for dealing with theISE in relation to all aspects of the fund’slisting. Many promoters choose to listtheir funds on the Irish Stock Exchange astheir target institutional investors may beconstrained to invest only in listedsecurities or securities which are listed on arecognised and regulated stock exchange.

TYPES OF FUNDSThe principal forms of funds undermanagement in Ireland are:

• UCITS funds constituted in the form of(i) unit trusts, (ii) investment companieswith variable share capital, and (iii)common contractual funds; and

• Non-UCITS funds constituted in theform of (i) unit trusts, (ii) investmentcompanies with variable share capital,and (iii) common contractual funds

Funds may also be established in otherforms such as investment limitedpartnerships, although these are very rarein practice.

UCITS

Undertakings for Collective Investment inTransferable Securities (UCITS) arecollective investment schemes establishedand authorised under a harmonised EU(EU) legal framework. A UCITSestablished and authorised in one EUMember State can be sold or“passported" cross border into other EUMember States without a requirement foran additional authorisation. This“European passport” enables fundpromoters to create a single product forthe entire EU rather than having toestablish an investment fund product on ajurisdiction by jurisdiction basis.

NON-UCITS

Non-UCITS funds are established pursuantto domestic law rather than EU law and, assuch, do not qualify for a passport in orderto be marketed in other EU MemberStates. It follows, therefore, that theCentral Bank has more flexibility regardingthe imposition or relaxation of conditionsgenerally. In developing its regulatory

regime for non-UCITS, the Central Bankhas drawn a distinction between differentcategories of investors, in terms of level of‘sophistication’ (i.e. whether retail orprofessional). In addition, certain specialistfunds (for example, real estate and privateequity funds) which are not permittedunder the UCITS rules are permitted asnon-UCITS.

Non-UCITS funds can be established inbroadly three regulatory categories: (i)retail, (ii) professional investor; and (iii)qualifying investor. Retail non-UCITS aresubject to similar conditions andrestrictions in relation to investment andborrowing as UCITS funds. Theseconditions and restrictions are relaxedsomewhat for professional investor funds.The conditions and restrictions relating toinvestment and leverage do not applyalmost in full in respect of funds which aremarketed solely to qualifying investors.The investors themselves must also meet aqualifying investor test.

TAXATION OF FUNDSUnless an investor in an Irish fund isresident or ordinarily resident in Ireland,generally there is no tax payable in Irelandon either a fund's income and gains or inrespect of any payments received from thefund by the investor.

Irish regulated funds, however they areconstituted, are not subject to tax on theirincome and gains but instead operate anexit tax regime where a potential taxliability only arises in respect of certainchargeable events such as a payment ofany kind to an investor, or a transfer ofunits. In certain circumstances, the fundmay elect not to operate the exit tax onsuch a deemed chargeable event, in which

1.4 trillion of funds are administered from Ireland


case it must report certain investor detailsto the Irish Revenue and the tax liabilityarises on the investor on a self assessmentbasis. However, such an exit charge taxonly arises to the extent and only inrespect of Irish resident or ordinarilyresident investors.

Many categories of Irish resident investorsare entitled to an exemption from this exittax including pension schemes, insurancecompanies, other funds, charities,approved retirement funds, approvedminimum retirement funds, specialsavings, incentive accounts and PRSAs andcredit unions.

SERVICE PROVIDERS

Funds established in Ireland are required

to appoint (i) an Irish-based custodian to

act as a custodian/trustee of Irish

authorised funds for the safe keeping of

the funds assets and (ii) an Irish based

administrator responsible for maintaining

the accounts and records of the fund.

Custodians and administrators must be

approved by the Central Bank. The

investment manager for an Irish fund is not

required to be located in Ireland but must

seek the approval of the Central Bank. A

fund set up as an investment company

must have at least two Irish resident

directors. The management company of

unit trust or a CCF must also have at least

two Irish resident directors.

REDOMICILE OF FUNDS TO IRELAND

The Companies (Miscellaneous Provisions)

Act 2009 enables non-Irish fund

companies to redomicile into Ireland on

the basis that the migrating fund company

will continue its existence as a company

registered under Irish law. This is likely to

be of particular interest to promoters of

alternative investment funds such as

hedge funds, real estate funds and private

equity funds who wish to redomicile their

offshore funds to a regulated, well-

serviced OECD and EU jurisdiction. In

particular, the legislation will benefit the

many hedge fund managers seeking to

avail of the distribution opportunities

afforded by the UCITS Directive and for

these preparing for the introduction of the

proposed Alternative Investment Fund

Managers Directive, which currently

contemplates the granting of an EU

marketing passport to EU domiciled funds

only.


Our inward investment expertise

Corporate and commercialOur team has dedicated foreign directinvestment lawyers and is fully integratedwith our Company Secretarial team whichcan provide company secretarial servicesto multinationals. Our Corporate andCommercial department advises on theestablishment of the Irish operation,mergers and acquisitions, restructuringand contracts. Our New York officefacilitates US clients needing Irish advicein an as efficient a manner as possible.

Regulatory and anti-trustOur team advises on a broad range ofregulatory issues including foreign directinvestment grants, executive visas andindustry specific licences.

TaxOur tax team, a full service tax practice,serves a broad range of domestic andmultinational clients in all major businesssectors. We advise on all tax aspects ofestablishing operations in Ireland and taxissues arising for established operations. We also have extensive experience in cross-border and international taxmatters.

Intellectual propertyOur Intellectual Property Group providesexpert advice on both commercial andcontentious intellectual property matters.The team brings together a wealth ofexperience in advising clients onintellectual property, ICT and industryspecific matters and regularly advises onintellectual property rights (patents,trademarks, design rights and copyright)and related issues – includingregistrations, exploitation (licenses andassignments), IP due diligence and IP

enforcement. Our lawyers focus onproviding pragmatic solutions to thedomestic and international IP issues facedby our clients.In relation to contentious IP matters, thefirm has a unit headed by a specialistintellectual property litigation partner withexperience in all areas of hard and soft IPlitigation, including obtaining searchorders and using all forms of ADR fromarbitration to mediation and co-mediation

LabourOur labour unit provides tailored legaladvice on all aspects of EU and Irishlabour issues including employmentcontracts, trade union recognition,disputes and transfer of undertakings

Real estateOur property unit uses its strong workingrelationship with Irish commercial agentsto help negotiate favourable commercialterms as efficiently as possible.

OutsourcingOur outsourcing unit draws together theextensive experience, industry knowledgeand business acumen of experiencedlawyers from each of the key practiceareas within the firm to ensure that ourclients receive a seamless andcomprehensive service in what can be asensitive sector. We recognise the importance of contractswhich are sufficiently detailed to governthe relationship on a day to day basis butalso sufficiently flexible and practical toanticipate and facilitate change.

Our Foreign DirectInvestment Teamdraws on thetechnical expertise oflawyers from acrossthe firm’s practiceareas. We pool ourdiverse andcomplementary skillsin an integrated,practical andinnovative manneraccording to clientneeds. This dynamicand flexibleapproach hasenabled us todevelop andmaintain a leadingposition in theprovision of focusedadvice tomultinationals inIreland.


Our lawyers have advised the following multinationals on their Irish operations


Paul McGennisManaging Partner

Paul is the firm’s ManagingPartner. He specializes in FDI,banking and commercialproperty. He is a member of theCouncil of the Dublin Chamberof Commerce. He has been instrumental inextending the firm’s international reach,particularly with US based investment clients.

Direct line: +353 1 691 5202 Email: [email protected]

Ursula TippPartner & Head of Tax

Ursula is a tax lawyer, dual-qualified in Ireland andGermany, with over 15 years'experience in internationaltaxation. She was formerly thehead of the tax department in a largemultinational.

Direct line: +353 1 691 5283Email: [email protected]

Darren DalyPartner, ICT & Technology

Darren advises on both generalcorporate law matters and alsoprovides specialist advice onintellectual property, ICT, e-commerce, data protectionand technology issues with a particularemphasis on advising technology clients inthe health services, pharma, and medicaldevice sectors.


Dennis Agnew Partner, New York

Dennis is a corporatetransactional lawyer who headsthe firm's Foreign DirectInvestment team and acts for abroad range of US and Irishcompanies. Based in our NewYork office, Dennis' role is to provide Irishlegal advice and know-how to UScompanies in as efficient a manner aspossible.

Direct line: +1 212 906 1999Cell: +1 917 225 6300 Email: [email protected]

David HourihanePartner & Head of Green Economy

David is at the forefront ofadvising innovative clients onclean technologies andrenewable energy, includingbiomass CHP, energy efficiency,forestry, green transport and wastemanagement. David also advises companiesactive in both the compliance and voluntarycarbon markets.


Catherine GuyPartner & Head of Property

Catherine has been a partner inthe firm's Property Divisionsince 1998. She works with awide range of clients, acting inall types of property acquisitionand investment and development proposals.This includes land acquisition and sales,mixed commercial and residentialdevelopment schemes, significantcommercial development schemes and taxdriven investments.


Enda NewtonPartner, Corporate and Commercial

Enda is a corporatetransactional lawyer who headsthe firm's International BusinessSection. He is extremely activein foreign direct investmentareas and is the current president of the IrishCanada Business Association


Colin Sainsbury Partner & Head of Life Sciences

Colin is a corporatetransactional lawyer with over16 years’ experience in theinternational life science sectorand acts for a broad range ofIrish and foreign life sciencescompanies. Colin was previously Senior VPand General Counsel of Elan Corporation’sDrug Delivery Division.


Michael KennedyPartner & Head of Employment

Michael has practisedexclusively in the area ofemployment andadministrative law sincequalifying as a solicitor in 1987.Michael advises a wide rangeof clients including corporations, publicbodies, professional organisations andindividuals on both contentious and non-contentious issues. He is Secretary of theIrish Society for Labour Law and is a memberof the Law Society’s Employment andEquality Committee. He is a co-author of theLaw Society’s Employment Law manual(published by Oxford University Press, 2003).


Our team

All information is correct as at September 2011.This document is for general guidance only and should not be regarded as a substitute for professional advice.

why ireland? - byrnewallace · 2013-02-15 · the united arab emirates among others and will have...

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