SCHEDULE 12

Delivery of Reports and Accounts: Companies to Which the Eleventh Company Law Directive Applies

Part I

Companies Required to Make Disclosure Under Parent Law

Scope of Part

1 (1) This Part applies to any company to which section 333 applies which is required by its parent law to prepare, have audited and disclose accounts.

(2) This Part of this Schedule also applies to any company to which section 316 applies which is incorporated in a member State and—

(a) is required by its parent law to prepare and disclose accounts but, by virtue of Article 51 of the Fourth Council Directive, is not required by that law to have those accounts audited; or

(b) is not required by its parent law to prepare, have audited and disclose accounts if—

(i) its parent undertaking prepares, had audited and discloses consolidated accounts; and

(ii) in pursuance of Article 57 of that Directive, its accounts are included in those consolidated accounts.

Duty to deliver copies in Gibraltar

2 (1) This paragraph applies in respect of each branch which a company to which this Part applies has in Gibraltar.

(2) The company shall deliver to the registrar for registration in respect of the branch copies of all the accounting documents prepared in relation to a financial period of the company which are disclosed in accordance with its parent law on or after the end of the period allowed for compliance in respect of the branch with section 318 or, if earlier, the date on which the company complies with that section in respect of the branch.

(3) Where the company’s parent law permits it to discharge its obligation with respect to the disclosure of accounting documents by disclosing documents in a modified form, it may discharge its obligation under subparagraph (2) by delivering copies of documents modified as permitted by that law.

(4) If any document, a copy of which is delivered under sub-paragraph (2), is in a language other than English, the company shall annex to the copy delivered a translation of it into English, certified in accordance with rule 5 of the Companies Rules to be  a correct translation.

Paragraph 2 shall not require documents to be delivered in respect of a branch if—

(a) before the end of the period allowed for compliance with that paragraph, they are delivered in respect of another branch in the United Kingdom, and

(b) the particulars registered under sections 318 to 326 in respect of the branch indicate an intention that they are to be registered in respect of that other branch and include the details of that other branch mentioned in section 321(b).

Time for delivery

4 The period allowed for delivery, in relation to a document required to be delivered under paragraph 2, is 3 months from the date on which the document is first disclosed in accordance with the company’s parent law.

Penalty for non-compliance

5 (1) If a company fails to comply with paragraph 2 before the end of the period allowed for compliance, it, and every person who immediately before the end of that period was a director of it, is guilty of an offence and liable on summary conviction to a  fine not exceeding level 4 on the standard scale and for continued contravention, to a daily default fine not exceeding level 1 on the standard scale.

(2) It is a defence for a person charged with an offence under this paragraph to prove that he took all reasonable steps for securing compliance with paragraph 2.

Interpretation

6 (1) In this Part—

“financial period”—

(a) in relation to a company falling within paragraph (2)(a) above, means a period for which the company is required or permitted by its parent law to prepare accounts; and

(b) in relation to a company falling within paragraph (2)(b) above, means a period for which its parent undertaking is required or permitted by the undertaking’s parent law to prepare consolidated accounts;

“the Fourth Council Directive”  means the Fourth Council Directive of 25th July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (78/660/EEC);”.

“parent law”, in relation to a company, means the law of the country in which the company is incorporated;

and references to disclosure are to public disclosure.

(2) For the purposes of this Part of this Schedule, the following are accounting documents in relation to a financial period of a company falling within paragraph (1) above—

(a) the accounts of the company for the period, including, if it has one or more subsidiaries, any consolidated accounts of the group;

(b) any annual report of the directors for the period; and

(c) in the case of a company falling within paragraph 1 above—

(i) any report of the auditors on the accounts mentioned in paragraph (a) above; and

(ii) any report of the auditors on the report mentioned in paragraph (b) above.

(3) For the purposes of this Part of this Schedule, the accounting documents in relation to a financial period of a company falling within paragraph (2)(b) above are the consolidated accounts of its parent undertaking.

Part II

Companies not Required to Make Disclosure Under Parent Law

Scope of Part

7 (1) This Part of this Schedule applies to any company to which section 333 applies which does not fall within Part I above.

(2). This Part applies to any company to which section 333 applies which is not required by the law of the country in which it is incorporated to prepare, have audited and to disclose publicly accounts.

Preparation of accounts and reports

8 A company to which this Part applies shall in respect of each financial year of the company prepare the like accounts and directors’ report, and cause to be prepared such an auditor’s report as would be required if the company were a company to which regulation 16 of the Companies (Accounts Directive) Regulations 1997 applied.

Duty to deliver accounts and reports

9 (1) A company to which this Part applies shall, in respect of each financial year of the company, deliver to the registrar copies of the accounts and reports prepared in accordance with paragraph 8.

(2) If any document comprised in those accounts or reports is in a language other than English, the company shall annex to the copy delivered a translation of it into English, certified in accordance with rule 5 of the Companies Rules to be a correct translation.

(3) A company required to deliver documents under this paragraph in respect of a financial year shall deliver them in respect of each branch which it has in Gibraltar at the end of that year.

(4) Sub-paragraph (3) is without prejudice to section 331.

10 Paragraph 9 shall not require documents to be delivered in respect of a branch if—

(a) before the end of the period allowed for compliance with that paragraph, they are delivered in respect of another branch in Gibraltar or the United Kingdom, and

(b) the particulars registered under section 318 in respect of the branch indicate an intention that they are to be registered in respect of that other branch and include the details of that other branch mentioned in section 321(b).

Time for delivery

11 (1) The period allowed for delivering accounts and reports under paragraph 9 is 13 months after the end of the relevant accounting reference period, subject to the following provisions of this paragraph.

(2) If the relevant accounting reference period is the company’s first and is a period of more than 12 months, the period allowed is 13 months from the first anniversary of the company becoming a company to which this Part applies.

(3) In this paragraph “the relevant accounting reference period” means the accounting reference period by reference to which the financial year for the accounts in question was determined.

Penalty for non-compliance

12 (1) If the requirements of paragraph 9 are not complied with before the end of the period allowed for delivering accounts and reports, or if the accounts and reports delivered do not comply  with the requirements made by or under the Ordinance, the company and every person who immediately before the end of that period was a director of the company is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale and for continued contravention to a daily default fine not exceeding level 1 on the standard scale.

(2) It is a defence for a person charged with such an offence to prove that he took all reasonable steps for securing that requirements in question would be complied with.

(3) It is not a defence in relation to a failure to deliver copies to the registrar to prove that the documents in question were not in fact prepared as required by or under the Ordinance.