The Unregistered Companies Regulations 2009

JurisdictionUK Non-devolved
CitationSI 2009/2436

2009No. 2436

COMPANIES

The Unregistered Companies Regulations 2009

4thSeptember2009

8thSeptember2009

1stOctober2009

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 1043, 1210(1)(h) and 1292(2) of the Companies Act 2006 1.

Citation and commencement

1.-

(1) These Regulations may be cited as the Unregistered Companies Regulations 2009.

(2) These Regulations come into force on 1st October 2009.

Interpretation

2.In these Regulations-

(a) "unregistered company" means a body corporate incorporated in, and having a principal place of business in, the United Kingdom, other than-(i) a body incorporated by, or registered under, a public general enactment,(ii) a body not formed for the purpose of carrying on a business that has for its object the acquisition of gain by the body or its individual members,(iii) a body for the time being exempted from section 1043 of the Companies Act 2006 by a direction of the Secretary of State under subsection (1)(c) of that section, or(iv) an open-ended investment company;(b) "instrument constituting or regulating the company", in relation to an unregistered company, means any enactment, royal charter, letters patent, deed of settlement, contract of partnership, or other instrument constituting or regulating the company.

Application of provisions of the Companies Acts

3.The provisions of the Companies Acts specified in Schedule 1 to these Regulations apply to an unregistered company as to a company within the meaning of section 1 of the Companies Act 2006, subject to any limitation, adaptation or modification specified in that Schedule.

References to registered office and registration

4.For the purposes of the application to an unregistered company of the provisions of the Companies Acts applying to it by virtue of these Regulations-

(a) any reference to the company's registered office shall be read as a reference to the company's principal office in the United Kingdom;(b) any reference to the part of the United Kingdom in which the company is registered shall be read as a reference to the part of the United Kingdom in which the company's principal office is situated (and references to the registrar of companies shall be read accordingly);(c) any reference to the company's registered number shall be read as a reference to the reference number allocated to the company by the registrar.

Other general adaptations

5.-

(1) In the application of any provision of the Companies Acts by virtue of these Regulations-

(a) any reference to a public company shall be read, in relation to an unregistered company, as referring to a company that has power under its constitution to offer its shares or debentures to the public;(b) any reference to a private company shall be read, in relation to an unregistered company, as referring to a company that does not have power to offer its shares or debentures to the public;(c) any reference to the company's constitution, or to its articles of association, shall be read, in relation to an unregistered company, as referring to any instrument constituting or regulating the company;(d) any reference to the common seal of the company shall be read, in relation to an unregistered company, as referring to the common or authorised seal of the company.

(2) In the application of any provision of the Companies Acts to an unregistered company by virtue of these Regulations an expression defined, or otherwise having a particular meaning or effect, in relation to a company within the meaning of section 1 of the Companies Act 2006, has effect with any adaptations necessary to ensure a corresponding meaning or effect in relation to an unregistered company.

(3) Paragraphs (1) and (2) are subject to any specific adaptation or modification provided for in these Regulations.

Application of provisions relating to statutory auditors

6.For the purposes of section 1210(1)(h) of the Companies Act 2006 (meaning of "statutory auditor")-

(a) an unregistered company is a prescribed person, and(b) Part 16 of that Act (audit) as applied to unregistered companies by these Regulations is a prescribed enactment.

(and accordingly a person appointed as auditor of an unregistered company under Part 16 of that Act as so applied is a statutory auditor).

Saving

7.Nothing in these Regulations affects the application of any provision to an unregistered company otherwise than by virtue of these Regulations.

Revocations

8.The following Regulations are revoked-

(a) the Companies (Unregistered Companies) Regulations 1985 2,(b) the Companies (Unregistered Companies) Regulations (Northern Ireland) 1986 3, and(c) the Companies Acts (Unregistered Companies) Regulations 2007 4.

Transitional provisions and savings

9.Schedule 2 contains transitional provisions and savings.

Davies of Abersoch

Minister for Trade, Investment and Business Department for Business, Innovation and Skills

4th September 2009

SCHEDULE 1

Regulation 3

PROVISIONS OF THE COMPANIES ACTS APPLYING TO UNREGISTERED COMPANIES

A company's constitution

1.Sections 26 and 27 of the Companies Act 2006 (filing obligations in connection with company's articles) apply to unregistered companies, modified so that they read as follows-

Registrar to be sent copy of company's constitution

26.-

(1) A company must, not later than 15 days after the date of its incorporation, send to the registrar a copy of every instrument constituting or regulating the company.

(2) Where a company amends any instrument constituting or regulating the company, it must, not later than 15 days after the amendment takes effect, send to the registrar a copy of the instrument as amended.

(3) If a company fails to comply with subsection (1) or (2) an offence is committed by-

(a) the company, and(b) every officer of the company who is in default.

(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.

Registrar's notice to comply in case of failure with respect to company's constitution

27.-

(1) If it appears to the registrar that a company has failed to comply with-

(a) section 26(1) or (2) (registrar to be sent copy of company's constitution), or(b) any enactment requiring the company to send to the registrar-(i) a document making or evidencing an alteration in any instrument constituting or regulating the company, or(ii) a copy of any such instrument as amended,

the registrar may give notice to the company requiring it to comply.

(2) The notice must-

(a) state the date on which it is issued, and(b) require the company to comply within 28 days from that date.

(3) If the company complies with the notice within the specified time, no criminal proceedings may be brought in respect of the failure mentioned in subsection (1).

(4) If the company does not comply with the notice within the specified time, it is liable to a civil penalty of £200.

(5) This is in addition to any liability to criminal proceedings in respect of the failure mentioned in subsection (1).

(6) The penalty may be recovered by the registrar and is to be paid into the Consolidated Fund..

2.Sections 34 and 35 of the Companies Act 2006 (notice to registrar where company's constitution altered) apply to unregistered companies, modified so that they read as follows-

Notice to registrar where company's constitution altered by enactment

34.-

(1) This section applies where the constitution of a company is altered by an enactment, other than an enactment amending the general law.

(2) The company must give notice of the alteration to the registrar, specifying the enactment, not later than 15 days after the enactment comes into force.

(3) In the case of a special enactment the notice must be accompanied by a copy of the enactment.

(4) If the enactment amends any instrument constituting or regulating the company, the notice must be accompanied by a copy of the instrument in question, as amended.

(5) A "special enactment" means an enactment that is not a public general enactment, and includes-

(a) an Act for confirming a provisional order,(b) any provision of a public general Act in relation to the passing of which any of the standing orders of the House of Lords or the House of Commons relating to Private Business applied, or(c) any enactment to the extent that it is incorporated in or applied for the purposes of a special enactment.

(6) If a company fails to comply with this section an offence is committed by-

(a) the company, and(b) every officer of the company who is in default.

(7) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.

Notice to registrar where company's constitution altered by order

35.-

(1) Where the constitution of a company is altered by an order of a court or other authority, the company must give notice to the registrar of the alteration not later than 15 days after the alteration takes effect.

(2) The notice must be accompanied by-

(a) a copy of the order, and(b) if the order amends any instrument constituting or regulating the company, a copy of the instrument in question, as amended.

(3) If a company fails to comply with this section an offence is committed by-

(a) the company, and(b) every officer of the company who is in default.

(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.

(5) This section does not apply where provision is made by another enactment for the delivery to the registrar of a copy of the order in question..

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