DOING BUSINESS IN IRELAND - Beauchamps
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This booklet is for general information purposes only and does not comprise advice on any particular matter. You should not rely on any of the material in this booklet without seeking appropriate legal or other professional advice. While every care has been taken in preparation of this booklet, we are not liable for any inaccuracies, errors, omissions or misleading information contained in it. Last updated: Beauchamps July 2017 2
DOING BUSINESS IN IRELAND Contents 1. INTRODUCTION 5 2. IRELAND’S ATTRACTIONS AT A GLANCE 6 3. CHOOSING A BUSINESS STRUCTURE 7 4. INCORPORATING A COMPANY 8 5. IRELAND’S FAVOURABLE TAX REGIME 9 6. PERSONAL TAXES 13 7. MORE TAX INCENTIVES 14 8. INVESTMENT INCENTIVES 15 9. BANKING 16 10. INTELLECTUAL PROPERTY & DATA PROTECTION 17 11. EMPLOYMENT LAW IN IRELAND 19 12. REAL ESTATE 28 13. APPENDIX: IRELAND FACTS AND FIGURES 30 3
INTRODUCTION Ireland continues to be one of the favoured global locations for investment. A record number of investments were secured during 2016 - rising to 244 from 213 in the previous year. Total employment at overseas companies now stands at 199,877 people, the highest level on record. There are over 750 overseas companies with internationally focused operations in Ireland, many of these are the top technology, pharmaceutical and financial services companies in the world. Our pro-business environment, low corporate tax rates and the availability of a young, well-educated and skilled work force have helped us attract hundreds of foreign companies to locate here. In addition, costs in property, rents, services and labour have fallen over the last five years significantly increasing our cost competitiveness. In this booklet, we look at investing in Ireland and outline some of the benefits Ireland has as a business location. Whether considering establishing in Ireland for the first time, expanding into Europe, or if you already have an established European presence and are looking to future expansion, we hope this publication serves as a valuable resource for you. 5
Ireland's attractions at a glance: Track record Talent Innovation • A record number of investments were • A workforce that is: young, • Some of the world’s most secured during 2016 - rising to 244 capable, English speaking, cutting-edge companies have from 213 in the previous year highly adaptable, educated, invested in Ireland - 5 of the • Ireland is 1st in the world for inward flexible, productive, innovative top 10 companies on Forbes’ list investment by quality and value and committed to achievement of The World’s Most Innovative • Globally experienced senior Companies have Irish operations • 1st in the world for investment incentives management • Ireland is one of the world’s leading Research, Development • In the top 10 most innovative and Innovation (RDI) locations countries in the world • Ireland ranked 7th out of 128 • 1st for flexibility and adaptability of countries in the 2016 Global people Innovation Index • Home to 9 of the world’s the top 10 global software companies, 10 of the Ease of doing world’s top 10 pharma companies, and 19 of the world’s top 25 financial business services companies • Consistently ranked as one of the • Attract companies from all sectors best countries in the world to do such as ICT, life sciences, financial business in (Forbes, 2016) services, Internet of Things, engineering and business services Education • Ireland has one of the most educated workforces in the World: according to the OECD 52% of 25-34 year olds have a Tax third level qualification - 10% Europe • 12.5% corporate tax rate, higher than the OECD average • Strong and diverse multilingual • English speaking and member attractive R&D credits, beneficial skills - 17% of Ireland’s of EU / Eurozone, with free holding company location population is international and movement of goods and services • Attractive intellectual property over half a million (514,068 within EU and its 500 million plus regime, extensive double tax people) Irish residents speak a consumers treaty network foreign language fluently • Large number of cities and • Double tax treaty network • 20% increase in applicants to towns with proven ability to STEM (Science, Technology, attract FDI Engineering & Maths) subjects 1 Based IDA Ireland’s “Facts About Ireland - September 2016” and “Why Invest in ireland” proposition 6
CHOOSING A BUSINESS may be a director). STRUCTURE Branches A foreign limited company which carries on business in Ireland can establish a branch in Ireland without Establishing a legal entity in Ireland incorporating an Irish company subject to filing certain Irish law caters for several types of company structures information in the Irish Companies Registration Office. The which are easy to establish. Non-Irish nationals or non-Irish information to be filed includes copies of the company’s residents may hold shares in an Irish company. There are, constitutional documents, accounts, details of its directors for the most part, no minimum share capital requirements. and company secretary, and the name of the person Incorporation can typically be achieved within five days. resident in Ireland authorised to accept service of process on behalf of the company. STOCK COMPANIES OR COMPANIES LIMITED BY SHARES Representative offices Private limited liability company A foreign company may establish a representative office in Ireland but they should be passive and not sell or engage There are two forms of private limited company – the in business. model form known as an LTD and the designated activity company (DAC) (which may also be limited by guarantee). PARTNERSHIPS A private company can have up to 149 members. It is possible to have a single member company and the General partnerships LTD may have one director in which case the company General partnerships have no minimum share capital secretary must be a separate person. The DAC must have requirement and all partners have joint and several at least two directors and a company secretary (who liability. Although governed by the Partnership Act may be one of the directors). The minimum share capital 1890, most partnerships will have a separate contractual requirement is nominal. Private limited companies are the agreement reflected in a partnership agreement. There is most popular form of business structure. a statutory prohibition on having more than 20 partners in a partnership save in the case of partnerships of Public limited liability company (plc) professionals such as lawyers, accountants etc. Partnerships More popular among large companies, a public company are generally looked through for taxation purposes. can look to the public for finance and can trade on the stock market. It too may have one shareholder and must Limited partnerships have at least two directors and a company secretary (who Again they have no minimum share capital requirement. may be a director). The minimum allotted share capital for Limited partners have limited liability but are unable to a plc is €25,000, of which 25% must be paid up at time of participate in the management of the partnership. General incorporation. partners who may participate in such management have unlimited liability. A corporate can hold the position of Companies limited by guarantee general partner. There must be at least one general partner These types of companies are more normally seen in not and one limited partner. for profit ventures or sporting, charitable or representative organisations. OTHER STRUCTURES Unlimited companies Societas Europea (SE) As its name suggests, the shareholders have unlimited This is a public limited company established in any EU liability for the debts of the company. Companies with member state. Both its registered office and head office unlimited liability may have one shareholder but must must be located in the same member state. have at least two directors and a company secretary (who 7
European Economic Interest Grouping (EEIG) Every Irish incorporated company is required to have one EEA2 resident director unless it holds a surety bond Irish companies may form EEIGs with other EU companies to the value of approx. €25,000 or the Irish Revenue in order to undertake specific activities both within and Commissioners have certified it has a real and continuous outside the EU. EEIGs have unlimited liability. link with one or more economic activities in Ireland. A Industrial and provident societies corporation is not eligible to be a director, but may be the company secretary. A company has certain ongoing Industrial and provident societies or cooperatives and statutory obligations, including: friendly societies have limited liability. • holding its first Annual General Meeting (AGM) within eighteen months of incorporation and AGMs thereafter at intervals of not more than fifteen months (this may be INCORPORATING A dispensed with by LTDs and single member DACs) COMPANY • an annual return must be filed with the CRO together with the relevant accounts, made up to a date not more To incorporate an Irish company, the following documents than nine months earlier than the date of the annual have to be filed with the Irish Companies Registration return, the first Annual Return Date (ARD) is six months Office (CRO): after the date of incorporation and each subsequent ARD is the anniversary of the first ARD • the company’s constitutional documents • presenting the company’s accounts to the members of • a Form A1 the company for consideration at the AGM A new private limited company can be incorporated at a The requirement to file and / or audit accounts are relaxed minimal cost within approximately five days. The minimum for smaller companies. Companies are required to keep capital requirement for an Irish private company is nominal proper books of account. and shares can be denominated in any currency. 2 European Economic Area, the member states of the EU plus Norway, Liechten- stein and Iceland. 8
IRELAND’S FAVOURABLE If either of these exemptions apply, then the test for whether a company is tax resident in Ireland is whether the TAX REGIME company carries out its central management and control from Ireland. Ireland has a favourable tax regime which includes a low Where an Irish incorporated company that is managed and corporate tax rate of 12.5% for trading income, generous controlled in a treaty partner country would not otherwise tax depreciation allowances for capital expenditure and an be regarded as resident for tax purposes in any territory extensive tax treaty network. by virtue of the fact that the company would not a) be resident for tax purposes in the treaty partner country Residence because it is not incorporated in that country and b) the The scope and remit of Irish corporation tax is largely company would not be resident in Ireland for tax purposes dependent on the residential status of a company. Broadly because it is not managed and controlled in Ireland, then speaking, a company that is tax resident in Ireland is the company will be regarded as resident in Ireland for tax subject to Irish corporation tax on its worldwide income purposes. and gains although specific exemptions do exist for certain income such as distributions from other Irish resident Tax year companies and patent income. Non-resident companies The tax year is aligned with the company’s accounting year operating in Ireland through a branch are subject to Irish rather than to the calendar year. tax on the profits of that branch and on disposals of assets used in that branch. Rates All companies incorporated in Ireland on or after 1 January The rates of corporation tax are 12.5% and 25%. In general, 2015 will be regarded as Irish tax resident unless the Irish the trading profits of a company are liable to the 12.5% incorporated company is treated as tax resident elsewhere rate. Non-trading or passive profits earned by a company by virtue of a tax treaty. A company that is incorporated in are taxed at a rate of 25%. There is no actual definition of another country that is centrally managed and controlled what constitutes trading to be found in Irish tax statute in Ireland will be treated as tax resident in Ireland. For although dealing in or developing land, working minerals companies incorporated before 1 January 2015 the date and petroleum activities are expressly excluded. Guidance for the application of this new rule will either be after 31 published by the Irish Revenue Commissioners expressly December 2020 or the date of a change in ownership of includes development and exploitation of intellectual the company where there has been a major change in property, investment management activities, activities the nature or conduct of the business of the company, relating to R&D and corporate treasury functions as whichever is earlier. constituting trading. Any company incorporated in Ireland prior to 1 January A rate of 12.5% also applies to foreign dividends 2015 (not subject to the new rule) is treated as Irish tax repatriated from foreign traded income where certain resident unless one of the following exemptions applies: conditions are satisfied. Credit for foreign tax suffered is also available. • where the company is under the ultimate control of a person resident in any EU Member State, or in another Dividends country which has a double tax treaty with Ireland, or which itself is related to a company whose principal Dividends received by an Irish resident company class of shares is regularly traded on the stock exchange from another Irish resident company are exempt from in an EU country or treaty country, and the company corporation tax. carries on trade in Ireland or is related to a company Dividends received by an Irish resident company that are which carries on trade in Ireland or paid out of trading profits of a company that is resident • the Irish incorporated company is treated as tax resident in the European Union, a tax treaty county or a company elsewhere by virtue of a tax treaty. (or its 75% subsidiary) whose principal class of shares is traded on a recognised stock exchange are taxed at 12.5%. 9
The Finance Act 2012 extended this relief to countries with terms were agreed to before 1 July 2010). If the amount which Ireland has ratified the OECD Convention on Mutual received in respect of a sale or transfer between connected Administrative Assistance in Tax Matters. parties is understated or expenses overstated, and the profits or losses of either company are chargeable to Irish Assistance in tax matters tax as trading profits or losses, there will be an adjustment Relief for foreign taxes suffered on the dividend may be made to substitute an arm’s length amount in each case. available to reduce any Irish tax payable and this is usually Companies must maintain such records as would be given by way of credit. Under foreign tax credit pooling “reasonably required” for the purposes of determining rules, an excess tax credit arising in respect of a foreign whether the company’s trading income is correctly dividend may be offset against the corporation tax arising computed by reference to the arm’s length principle. on other foreign dividend income. Excess tax credits arising There is a full exemption for small and medium enterprises. in an accounting period may be carried forward indefinitely for offset against corporation tax on foreign dividends in To fall within the exemption, the enterprise (including later periods. group companies) must have less than 250 employees and either a turnover of less than €50 million or assets of less Interest and financing costs than €43 million (assessed annually on a group wide basis). Interest incurred wholly and exclusively on a loan for trade purposes will normally be deductible for tax purposes. If Real Estate Investments Trusts (REITs) not deductible, it may still qualify as a charge on income in Ireland has recently introduced legislation which provides certain circumstances. There are numerous anti avoidance an exemption from corporation tax and chargeable provisions, particularly in group situations. gains arising from rental investment property where the property is held by a listed company and subject to a Carry forward of losses number of conditions- for example 85% of the income Trading losses incurred by a company can be offset against must be distributed to shareholders annually. Income other profits of the same or the preceding accounting and gains are generally tax neutral within the company period. Trading losses can be carried forward indefinitely to and are not subject to tax until paid out in the form of be offset against future trading profits that a company may dividends. Accordingly the double layer of taxation that earn provided that within a three year period there has not would normally arise when property is held by a corporate been a change in ownership of the company and a major is eliminated. change in the nature or conduct of the trade. Where a company has other profits, which may include investment Capital gains tax and rental income and certain capital gains, there is An Irish resident company is subject to Irish capital gains provision for the losses from trading activities to be offset tax on its worldwide gains. The rate is 33% with respect to on an after-tax basis. disposals made on or after 6 December 2012. The gain is effectively calculated as the excess of the sale or deemed Where a company has related companies that are tax sale price over the cost, foreign exchange rate movements resident in Ireland, and where certain criteria are met, a and pre 2003 indexation. loss that is incurred by one company can be offset against profits of the other company. The recipient company can Disposals by Irish resident companies from substantial use these surrendered losses to reduce its own taxable shareholdings (at least 5%) in trading subsidiaries tax income for the period. resident in an EU or tax treaty country are exempt, in most cases, from capital gains tax. In group situations, holdings Transfer pricing of other members of the group are taken into account in Ireland introduced legislation which will align it with determining whether the minimum holding requirement international standards by adopting the OECD principles. is met. These provisions take effect for accounting periods commencing on or after 1 January 2011 (subject to certain grandfathering provisions for arrangements where the 10
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Deposit Interest Retention Tax (DIRT) with the Irish Revenue and follow the procedures for the deduction at source of employees’ income tax, known The rate of retention tax that applies to deposit interest, as Pay As You Earn (PAYE), Universal Social Charge (USC) together with the rates of exit tax that apply to life and Social Insurance (PRSI) contributions. Companies assurance policies and investment funds, is 41%. The rate are required to operate this on both cash payments and applies to payments made on or after 1 January 2014 and benefits in kind and it applies whether the employment is deducted at source by banks and other deposit takers on is an Irish employment or a foreign employment. Since 1 certain deposits. January 2011, certain equity based compensation has also Withholding taxes to be processed through the PAYE system. Dividend withholding tax at the standard income tax Value added tax rate (currently 20%) applies to dividends and other profit Ireland has a sales or value added tax (VAT) system based distributions made by Irish resident companies. Generally on the EU Sixth Directive. speaking, such payments, when made to persons resident in EU Member States (apart from Ireland), or in countries This is levied on most goods and services and on most with which Ireland has a tax treaty, or when made to Irish goods imported into Ireland from outside the EU. resident companies, or companies resident in the EU or The standard rate of VAT is 23%, with lower rates of a double tax treaty country, or non-resident companies 13.5% (for buildings and household fuels), 5% (flat rate to controlled by EU (other than Irish), or treaty country farmers), 4.8% (livestock) and zero (food, drink and certain residents, or non-resident companies wholly owned by other goods) rates applicable to certain supplies of goods companies quoted in an EU, or treaty country are exempt and services. A rate of 9% applies to certain restaurant, from the withholding, subject to compliance with certain hotel and leisure and other tourism services. Banking, formalities. financial services and insurance are exempt. Income tax must be deducted at the standard rate The VAT is calculated on the euro value of the consideration (currently 20%) on certain payments, to include interest and declared and paid to Irish Revenue through periodic and patent royalties. An exemption may be available under returns. domestic legislation from Irish withholding tax where interest is paid by a company in the ordinary course of its Stamp duty trade or business to non-resident companies who are EU Stamp duty arises on certain instruments including those residents or residents of double tax treaty countries and transferring ownership in property or shares. The rate that country imposes a tax that generally applies to interest on share transfers is 1% of the purchase price or value, received from outside that territory. residential property rates are 1% to 2% depending on Under the Interest and Royalties Directive, interest price, and the rate on transfers of commercial property and and royalty payments by an Irish resident company to business goodwill is 2%. Transfers of shares listed on the associated companies may be paid without the obligation Enterprises Securities Market will be exempt. Relief also to withholding tax subject to the conditions set out in the applies to transfers between associated companies and in Directive. certain re-organisations. Tax treaty network There is no stamp or capital duty on the issue of shares or loan capital. Shares in a non-Irish company are normally Ireland has concluded tax treaties with 72 countries, of (but not always) exempt from this charge. An assignment which 70 are in effect. Different rates of withholding tax of loan capital can, on satisfaction of certain pre- can apply to interest, dividends and royalties, depending conditions, be assigned without attracting a stamp duty on the terms of the particular treaty. charge. It has concluded Tax Information Exchange Agreements with 25 countries, 20 of which are in force. Property Taxes A property tax known as “rates” applies to commercial Payroll properties and is payable annually. Private residences and A company which engages employees must register agricultural holdings are exempt from rates. Rates are 12
based on the rateable valuation of land and buildings as one spouse or both spouses are earning income. These determined by the relevant local authority. Ireland has just taxes are either deducted by employers under the PAYE introduced an annual residential Local Property Tax (LPT). system or collected via a self-assessment System. The rate of LPT will be 0.18% for properties up to a market In addition to income tax, employees are also obliged to value of €1million. Residential properties valued over €1 pay PRSI and USC. million will be assessed at the actual value at 0.18% on the first €1million in value and 0.25% on the portion of the Capital gains tax value above €1 million. Irish resident individuals are liable to capital gains tax of 33% on their worldwide gains. PERSONAL TAXES There are a number of notable exceptions and reliefs available including an individual’s principal private residence, tangible moveable assets with a life of less than Income tax 50 years and retirement relief. Individuals resident, ordinarily resident and domiciled in Persons who are not resident in Ireland are liable to Irish Ireland are liable to Irish income tax on their worldwide capital gains tax on the disposal of certain specified assets income. such as Irish land or buildings, Irish mineral or exploration rights, assets used for a branch activity conducted in An Irish resident and domiciled but not ordinarily resident Ireland, or unquoted shares which derive their value or a individual is also liable to Irish income tax on their greater part of their value from Irish land or buildings or worldwide income. exploration / exploitation rights. Non Irish domiciled individuals who are resident in Ireland In general, capital losses can be offset against capital gains are liable to Irish income tax on Irish source income, foreign arising in the same year or carried forward. employment income to the extent that the duties are exercised in Ireland and foreign income to the extent it is Pay Related Social Insurance (PRSI) and remitted to Ireland. Universal Social Charge (USC) A person will be deemed to be tax resident in Ireland if PRSI is a payroll tax, based on earnings, which funds they spend: various State benefits including unemployment assistance, • a total of 183 days (any part of a day) in Ireland in any retirement pensions, and certain medical benefits. tax year or Both employees and employers are obliged to make PRSI • a combined total of 280 days (any part of a day) over contributions. Employees pay 4% of total earnings in the two consecutive tax years (assuming a minimum of 30 form of this social security contribution. days in each tax year) An employer is obliged to pay 10.75% of each employee’s If a person is resident in Ireland for three consecutive years, remuneration. they will become ordinarily resident for tax purposes. There is also a USC which is payable on income at the A person’s domicile is, initially at least, their domicile following rates: of origin but you can prove you have abandoned your • The first €12,012 - 1% domicile of origin and acquired a new domicile known as a • The next €6,656 - 3% domicile of choice. • The next €51,3765 - 5% The Irish income tax system is progressive and there are two rates. The current standard rate of income tax is 20% • The remainder - 8% and the higher or marginal rate is 40%. The 20% rate is USC at a rate of 11% is payable on non PAYE income in available in respect of the first €33,800 of income of a excess of €100,000. single person. Higher bands are available for married couples but the actual bands are determined by whether 13
MORE TAX INCENTIVES Intellectual Property (IP) regime Ireland’s IP regime combined with the tax incentives already outlined make Ireland an attractive location for Holding Company Regime establishing an IP holding company to effectively manage Irish tax legislation provides: and exploit IP. • a participation exemption whereby capital gains which Research and Development tax credits are made by a company (the “investor company”) on the qualifying disposal of a substantial shareholding in a In addition to allowing a tax deduction in computing subsidiary (the “investee company”) are exempt from tax trading income, Ireland also provides a tax credit of 25% of capital and revenue expenditure (including, to a certain • a 12.5% corporation tax rate on foreign dividends extent, sub-contracted R&D spend) on qualifying research repatriated from foreign traded income where certain and development expenditure. conditions are satisfied Consequently the effective value of the tax deduction and • no cfc rules for foreign income tax credit is 37.5%. The credit may be used in a variety of • no relevant thin capitalisation ways, including to reward key employees by effectively giving them the benefit of credit. • onshore pooling of tax credits for certain foreign interest, branch profits and dividends; effectively this R&D tax credit claims must be made within 12 months of means that it will be usually possible to eliminate any the end of the accounting period in which the expenditure Irish tax cost on the repatriation of profits to Ireland and is incurred. • extensive treaty network 14
Knowledge development box noted: From 1 January 2016, Irish registered companies that • This relief applies to employees assigned to work in generate profits as a result of qualifying research and Ireland for a minimum period of 12 months and can be development activities on certain intellectual property availed of for a maximum period of five years assets including copyrighted software and patented • Assignees arriving in 2012 to 2017 are eligible inventions qualify for an effective corporation tax rate of 6.25% which is half the usual rate. • New hires are not eligible – the employee must have been a full time employee of a company incorporated IP – depreciation and resident in a Double Tax Treaty Tax depreciation is available on a broad range of IP • Country and must have exercised the duties for that assets. Companies carrying on a trade can claim this tax employer outside Ireland for the 6 months prior to depreciation on the capital cost of acquiring qualifying arrival in Ireland. In addition, the individual must not intellectual assets over the qualifying life of the asset or 15 have been tax resident in Ireland for the 5 tax years years. preceding the year of arrival (Irish domiciles / citizens are not excluded) Companies can effectively write capital expenditure off against the income streams that the expenditure Irish Employees going abroad - Foreign Earning generates. Deduction (FED) There is no claw back of the relief granted if the intangible The FED scheme is designed to assist companies seeking asset is retained for at least five years. to expand into certain specified relevant countries. Where the relief applied, a portion of the individual’s employment Stamp duty income (up to a maximum of €35,000) is exempt from Irish There is no stamp duty on the transfer of certain IP assets. tax. To qualify for the relief, the individual must have at Allowance for expenditure on scientific research. least 40 “qualifying days” in the year – a “qualifying day” for this purpose is one of at least three consecutive days which A company carrying on an Irish trade that incurs the individual is present in one of the relevant countries expenditure on capital equipment for research purposes for the performance of employment duties. The relief will qualifies for 100% capital allowances. operate for the tax years of assessment from 2012 to 2017. The Irish Collective Asset-management Vehicle (ICAV) Legislation providing for the establishment of the ICAV INVESTMENT was introduced in Ireland in 2015. An ICAV is a new and flexible corporate fund structure which is not subject to INCENTIVES Irish company law but is governed by bespoke new ICAV Generous fiscal incentives are available to foreign legislation. An ICAV operates as a corporate vehicle which companies looking to invest in Ireland. is fully exempt from Irish tax on income and profits and may be particularly attractive to US investors as it should These packages are flexible and vary from project to be entitled to “check the box” to elect to be a designated project. The primary grant aids available are as follows: entity for US domestic tax purposes. • capital grants contributing towards the cost of fixed assets, including: site purchase and development, Executives coming to Ireland - Special Assignee buildings and new plant and equipment Relief Programme (SARP) • where a factory building is rented, a grant towards The SARP targets the assignment of key foreign based the reduction of the annual rental payments may be individuals to their Irish based operations. The relief available instead operates by exempting from income tax 30% of qualifying employment income in excess of €75,000. It should be • employment grants to companies which will create 15
jobs. Normally, one half is paid on certification that the job has been created and the balance one year later, BANKING provided the job still exists The Central Bank of Ireland is responsible for banking and • training grants to cover the full cost of certain training financial regulation. As Ireland is a member of the euro initiatives. Covered costs include trainees’ wages, zone, some central bank functions are shared with other travel and subsistence expenses and engagement of members of the European System of Central Banks. instructors, consultants to train The two main Irish banks are Allied Irish Banks plc and Bank • research and development grants in respect of of Ireland. RBS / Ulster Bank, HSBC, KBC and Barclays also approved research and development work, including have a retail and / or business presence in Ireland. product and process development, feasibility studies and technology acquisitions Opening a bank account in Ireland In addition Enterprise Ireland has a significant support Residents and non residents may hold both euro and packages for entrepreneurs and start-ups. foreign currency accounts in Ireland and abroad. Electronic banking is widespread. 16
Financial products Trade Marks Act 1996 (as amended), which implements European legislation aimed at harmonising trade mark law Payments can be settled via domestic interbank payment throughout the EU. It is possible to register a trade mark systems and pan European clearing systems. Some allow which would only have effect in Ireland. Trade marks which for settlement in real time, others on a same or next day are granted are registered for ten years and are renewable basis. Cheques are still used particularly by small and indefinitely for successive periods of ten years subject medium size firms but their use is declining and there are to the applicable legislation. Under EU trade mark law it plans to phase out cheques by 2018. is also possible to apply for European Union Trade Mark Use of electronic credit transfers is growing and is almost protection, which, if granted, gives protection in every EU used across the board for payroll payments. Paper based country, with a single application. Ireland has also ratified credit transfers are also popular. the Madrid Protocol, which provides for international trade Debit and credit cards are wide spread and most are based mark registration. on chip and pin technology. Patents As one would expect, Irish based banks offer sophisticated The Irish patent system is governed by the Patents financing products including overdraft, lines of credit, term Act 1992 and there are two types of patent protection loans, invoice discounting, factoring, leasing, structured available: finance, letters of credit, commercial paper and bonds. • a full-term patent • a short-term patent INTELLECTUAL The full-term patent lasts for 20 years from the date of PROPERTY & DATA filing, provided that annual renewal fees are paid and the patent is not revoked at any stage. The term of a patent can PROTECTION be extended via a supplementary protection certificate for a maximum of five years where the patent is for a medicinal Copyright, trade marks, patents, designs and ancillary product for human or animal use or for plant production. rights such as confidential information are all capable of The short-term patent lasts for ten years and as with full- being protected in Ireland. term patents supplementary protection certificates may be obtained. Copyright Ireland is also a member of the European Patent The Copyright and Related Rights Act 2000 transposed Organisation and has ratified the Patent Co-Operation certain EU directives into Irish law and provides protection Treaty. When granted, a European Patent has the effect for specific works such as computer programs and original of a national patent in each of the countries designated. databases as well as literary, dramatic, musical and artistic A European Patent designating Ireland has the effect as works during the lifetime of the author and for 70 years if it were a full-term patent granted by the Irish Patent thereafter. Office and a single international application allows for the designation of some or all the contracting countries. Another form of database right dealt with in the Act gives rights to the creators of a database where there has been Designs substantial investment in obtaining, verifying or presenting the contents of the database (irrespective of whether the The Industrial Designs Act 2001 is the main legislation in database is a copyright work). The database right expires Ireland governing design rights. The Act provides that a 15 years from the end of the calendar year in which the design must be new and have individual character to be making of the database was completed. registrable and a registered design is capable of being protected for a maximum period of up to 25 years. Trade marks It is also possible to apply for European Union design Trade marks are protected under common law by way protection which gives protection in every EU country. of action for passing off and also under statute by the 17
In addition there is an unregistered design right which lasts E-commerce and consumer protection for three years from the date in which the design is first Ireland has implemented the Electronic Commerce made available to the public within the European Union. Directive which applies to almost all organisations who Confidential information offer commercial services to customers online. The legislation addresses and legitimises electronic contracts Other than the indirect protection afforded by data and signatures. It provides that certain information must protection legislation, there is no statutory protection for be provided by an online service provider in a manner confidential information and trade secrets in Ireland at which is easily, directly and permanently accessible to the time of writing. However, confidential information and recipients of a service. trade secrets can be protected by contractual provision or by and action in common law. There is a range of legislation that provides protection to consumers when concluding contacts online. For A European Directive on the protection of trade secrets example, the European Union (Consumer Information, is proposed which seeks to harmonise the protection of Cancellation and Other Rights) Regulations 2013 (SI 484 of trade secrets across the European Union against unlawful 2013) provides that before a binding contract for distance acquisition, disclosure and usage. Once adopted, Member selling can be entered into, a trader must supply certain States will have to implement the Directive into national information to a consumer (including the price of the law. goods, taxes and delivery costs). It also gives consumers 18
the right to cancel a distance contract. In addition, under the European Union (Alternative Dispute Resolution for EMPLOYMENT LAW IN Consumer Disputes) Regulations 2015 (SI 343 of 2015), businesses established in Ireland that have committed IRELAND to or are obliged to use an alternative dispute resolution Employment law in Ireland is largely based on EU law. (ADR) entity to resolve disputes with consumers, must provide consumers with details of the relevant ADR entity. The basics – what are the obligations of This information must be provided in a clear, employers in Ireland? comprehensible and easily accessible way on its website • Employees must be given a written statement of details and if applicable, in its general terms and conditions of their contract within two months of commencing or contracts. Also, under EU Regulation No. 524/2013, employment (eg, salary and deductions, job title or businesses must provide an easily accessible link to the nature of the work, hours of work and overtime, sick pay, European Commission’s on-line dispute resolution platform holidays etc) on their websites. • The national minimum wage rate for an experienced It is important to have appropriately drafted terms adult is €9.25 per hour. An “experienced adult” under the and conditions dealing with the requirements of the National Minimum Wage Act 2000 is an employee who e-commerce and consumer legislation. is over 18 years of age and is in employment of any kind for any two years over the age of 18. Employers are not Data protection legally obliged to pay sick leave The Data Protection Acts 1988 and 2003 (the Acts) govern • Employers should establish certain policies and data protection in Ireland but when the EU General Data procedures - including disciplinary, grievance and Protection Regulation comes into force on 25 May 2018, it dignity at work (including bullying and harassment,) will standardise the current data protection laws across the data protection, absenteeism policies European Union. The Acts specify the data protection principles which must Working time be complied with when personal data is being processed. Employees are entitled to a minimum of 20 days annual Different provisions apply depending on whether the holidays, in addition to nine statutory public holidays. personal data being processed is classed as sensitive or The maximum average working week for many employees non-sensitive data. cannot exceed 48 hours (subject to certain exceptions) Duties of data controllers and data processors are also set and employers must keep written records of employees out in the Acts. The Acts confer certain rights on individuals working hours and rest breaks. including: the right to be informed of data being kept; Employees are entitled to a daily rest break of 11 the right to prevent the use of personal details; the right consecutive hours and a weekly rest break of 24 hours. to have ones name removed from a direct marketing list; the right to access personal data and the right to rectify or Employees aged 18 and over are entitled to a rest break, remove details. paid or unpaid, of an uninterrupted period of 15 minutes after working for a period of four and a half hours, or a There are restrictions on the transfer of personal data by to rest break of 30 minutes after six hours have been worked, a country outside of the European Economic Area. Such a which may include the 15 minute break above. Where transfer may not take place unless that particular country applicable, breaks are to be spent away from workstations. or territory ensures an adequate level of protection for the privacy of its data subjects in relation to the processing If not already included in the rate of pay, employees are of personal data. It is possible to transfer data to an generally entitled to a premium payment for Sunday “unapproved” state provided binding corporate rules or an working or paid time off in lieu. The employment contract EU approved model contract is put in place. should expressly state whether or not the rate of pay is inclusive of a Sunday premium. 19
Termination of employment Maternity and protective leave There are minimum notice periods for termination of Female employees are entitled to up to 42 weeks maternity contracts of employment in the absence of employee leave in Ireland. The employee is entitled to a pay-related misconduct. The duration of notice is dictated by the maternity allowance from the Government during the first employee’s period of continued service and varies from 26 weeks of maternity leave and there is no obligation one week’s notice to eight weeks’ notice. on the employer to pay remuneration at any time during leave. There is a general right to return to work after Employees who have been employed by an employer for maternity leave. more than one year are generally protected from being unfairly dismissed unless the employer can establish that Employees are also entitled to adoptive leave on a similar there were substantial grounds justifying the dismissal basis. such as the employee’s conduct or redundancy (subject Male employees are entitled to up to 14 weeks unpaid to fair selection). Fair procedures must also be followed in parental leave and a right to return to work after such completing the termination. leave. While the employee may be awarded compensation up Carer’s leave allows an employee to leave their to a maximum of two years salary and / or reinstatement employment temporarily to provide full time care for a under the Unfair Dismissals acts 1997 (as amended), in person who is in need of such care. An employee is entitled practice, awards are often made and termination packages to a maximum of 104 weeks leave in respect of any one agreed below this level. care recipient. The minimum statutory entitlement is In certain cases an employee could seek to apply for a High 13 weeks. The employee must have at least 12 months Court injunction preventing any dismissal from taking continuous service with the employer before the effect. commencement of leave. There is no right to remuneration or superannuation benefits while on carer’s leave. In the case of the transfer of a business, all accrued employee rights (except certain pension rights) With effect from the 1 September 2016, new parents (other automatically transfer to a new employer so that dismissal than the mother of the child) are entitled to paternity leave due to such transfer is usually regarded as unfair. from employment following the birth or adoption of a child. The parent is entitled to statutory paternity leave for Redundancy two weeks which can be taken any time during the first Even where a redundancy may be justified, an employer six months following the birth or adoption placement. must not unfairly select employees to be made redundant Employers are not obliged to pay employees who are and the selection must be justified by objective criteria. on paternity leave, however, employees may qualify for paternity benefit from the Department of Social Protection. Employees who have worked for at least two years for an organisation are entitled to a statutory redundancy lump Employment equality sum when made redundant. Employers should be aware of the Employment Equality The level of the statutory redundancy payment is based on Acts 1998 and 2004 which prohibits discrimination on the pay of the employee. nine grounds. The grounds are: gender, marital status, Eligible employees are entitled to: family status, sexual orientation, religion, age, disability, race / colour / nationality / ethnic or national origins and • Two weeks’ pay for every year of service over the age of membership of the traveller community. The Act prohibits 16 discrimination in employment and deals in particular with • One further weeks’ pay access to employment, conditions of employment, training or experience for or in relation to employment, promotion The amount of the statutory redundancy payment is or re-grading or classification of posts. subject to a maximum earning limit of €600 per week (€31,200 per year). 20
The Protected Disclosures Act 2014 The Protected Disclosures Act 2014 is in place to protect whistleblowers. Under the Act, employers are prohibited from penalising employees who disclose relevant information which they reasonably believe shows one or more “relevant wrongdoings” have taken place in their place of work. The Act defines a number of “relevant wrongdoings” including: committing an offence, a threat to the health and safety of an individual, a miscarriage of justice, failing to comply with a legal obligation other than one arising under the workers contract of employment; damage to the environment, unlawful or improper use of public funds or resources or an act or omission by a public body that is oppressive, discriminatory or grossly negligent. Where an employer is found to have penalised an employee for making a protected disclosure, the employee may be awarded compensation of up to five years’ salary. Employment permits In order to work in Ireland a non-EEA National, unless they are exempted, must hold a valid employment permit. In 2016, the Department of Jobs, Enterprise and Innovation launched the employment permits online system with the aim of establishing faster turn-around times and facilitating easier online submission of supporting documents. The Department has published a very helpful user guide on its website. The main forms of permit are still the same - namely the Critical Skills Permit, the Intra-Company Transfer Employment Permit, the General Employment Permit and the Contract for Services Permit. There are also other forms of permit for specific situations. Applying for the most appropriate form of permit should be carefully reviewed at the outset to reduce the risk of refusal and time delays. In the following pages we outline the key details of the main types of employment permits. 21
Permit Duration Application Fee Eligibility / Requirements General Two years but An application fee of €500 • Minimum annual remuneration is generally €30,000 may be renewed is required for permits (remuneration includes salary and health insurance) Employ- for a further three of up to six months in (there are certain exceptions) ment years duration. An application • Non EEA students who have graduated in the last 12 Permit fee of €1,000 is required months from an Irish third level institution and have for permits of up to two been offered a graduate position from the Highly years duration. Skilled Occupations List may apply • Non EEA students who have graduated in the last 12 months from an overseas third level institution and have been offered a graduate position as an ICT professional from the Highly Skilled Occupations List may apply • Applications may be for specialist language support and technical or sales support with a fluency in a non- EEA language for companies who are getting support from the State enterprise development agencies • The individual must be directly employed and paid by the employer • The employer must be trading in Ireland, registered with Revenue and with the Companies Registration Office • A permit will only be issued to companies where the granting of a permit would not mean that more than 50% of the employees would be non EEA nationals • New applications must include evidence that a labour market needs test has been carried out meaning that that vacancy must have been advertised with the Department of Social Protection employment services / EURES employment network for two weeks and in a national newspaper for at least three days and in either a local newspaper or jobs website for three days • Employment permits are not available for occupations listed under the heading “Ineligible Employment” on the Ineligible Categories of Employment list • Where an employee is on their first employment permit, they are expected to stay with the new employer for 12 months (apart from in exceptional circumstances). After that, the employee may move to a new employer provided that a new application for a General Employment Permit is made for a similar job or to another eligible employment sector 22
Permit Duration Application Fee Eligibility / Requirements Critical This permit is The fee for a Critical Skills There are 2 categories of eligible occupations for a Skills Em- issued for two Employment Permit is Critical Skills Employment Permit: ployment years and the €1,000. If the application 1. Jobs with an annual salary of €60,000 or more Permit employee is not is refused or withdrawn, – occupations other than certain ineligible job required to renew 90% of the fee will be categories and those which are contrary to the public it. Instead the refunded to the applicant. interest employee may, on the expiry 2. Jobs with annual salaries of €30,000 or more – of this permit the occupation must be on the Highly Skilled type, apply to Occupations List his or her local • The employee must have a job offer from a company immigration or employer who is registered with Revenue, office for a Stamp trading in Ireland and trading with the Companies for permission to Registration Office live and work in • The employee must be directly employed and paid by Ireland without the employer in Ireland an employment permit. • The job offer must be for two years or more • A labour market needs test is not required • The employee must have the relevant qualifications, skills and experience required for the job • For jobs in the €30,000 or more salary range, the employee must have a degree qualification or higher • For jobs with an annual salary of €60,000 or more, the employee must have a degree or equivalent experience • The employee is expected to remain with the employer for 12 months (except in exceptional circumstances). After that, the employee may change employer provided that he or she has made a new application for a Critical Skills Employment Permit 23
Permit Duration Application Fee Eligibility / Requirements Dependent / This permit There is no fee for • This type of permit applies only to spouses, partners is usually Dependent / Partner/ or dependents legally resident in Ireland. Applications Partner/ issued for the Spouse Employment for this type of permit must go through the normal Spouse period up to Permit applications or employment permit procedures Employment the expiry renewals. • In order to be eligible, the applicant and the Permit date of the employment permit holder must be married, in Garda National a recognised partnership or in a civil partnership. Immigration A dependent must be a family member who is Bureau unmarried and aged under 18 years. The employment registration permit holder must have either a valid Critical Skills card of the Employment Permit, a valid Green Card permit or a employment valid employment permit or hosting agreement in permit holder. respect of a researcher position. The employment permit holder must also still be working within the terms of his or her permit • Someone on a Dependent / Partner / Spouse Employment Permit is expected to stay with the original employer for 12 months unless there are exceptional circumstances. After that it is possible to change job once an application for a Dependent / Partner / Spouse Employment Permit is made • The applicant must have a job offer and must have the qualifications, skills and experience required for the job • They must be paid directly by the employer and paid by their employer in Ireland • The applicant may work for a minimum of ten hours per week • The remuneration can be less that €30,000 per year however they must be paid at least the national minimum wage • The employer must be trading in Ireland, registered with the Revenue and with the Companies Registration Office 24
Permit Duration Application Fee Eligibility / Requirements Atypical Up to 90 days An application fee of • A non EEA national may qualify for this Scheme if Working €250 is required under they are required by an Irish based company to work Scheme the Scheme. where: -- A shortage of skills has been identified -- They are required to provide a specialised or high skill to an industry, business or academic institution -- They are a paid or funded short term employee or intern. This applies to students studying on an approved third level course outside Ireland where the Irish employment or internship is part of the course -- They will work as a locum doctor employed and paid by an agency -- They will work as a nurse or midwife on the RCSI Clinical Adaptation and Assessment Programme • A letter of confirmation from the Irish based host organisation and a copy of biographical page of the Applicant’s Passport must be included with the application • The employee must apply for the Scheme from outside Ireland and must not travel to Ireland until they have an Atypical Working Scheme Letter of Approval 25
Permit Duration Application Fee Eligibility/ Requirements Intra- The duration The fee for a new • This permit is designed to facilitate the transfer of Company of an Intra Intra-Company Transfer senior management, key personnel or trainees who Transfer Company Employment Permit, are non-EEA nationals from an overseas branch of a Employment Transfer Permit which must be paid by multinational corporation to its Irish branch Permit would be for a the connected person, • Intra-Company Transfer Employment Permits are defined period is: strictly limited to the following eligible positions: depending • €500 for an on the reason • Senior management earning a minimum annual Employment Permit for transfer. remuneration of €40,000 of 6 months or less Applications • Key personnel earning a minimum annual duration or may be remuneration of €40,000 or granted for • €1,000 for an Employment Permit • Personnel undergoing a training programme a maximum from 6 months up to earning a minimum annual remuneration of period of up 24 months duration €30,000 to 24 months in the first The fee for a renewal • The senior manager or key personnel must have instance of an Intra-Company been working for a minimum of 6 months with and may be Transfer Employment the overseas company prior to transfer in order to extended Permit is: support the contention that the person is integral to upon the organisation • €500 for an application to Employment Permit • If the application is in respect of Training the foreign a maximum of 6 months or less national must have been working for the Foreign stay of five duration Employer for a minimum period of 1 month prior to years. the transfer • €1,000 for an Employment Permit from 6 months up to 24 months duration • €1,500 - for an Employment Permit from six months, up to 36 months duration If an application is unsuccessful then 90% of the fee will be refunded. 26
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