Investing in Ireland, Corporate Governance and Tax
The international tax landscape is continuing to face extensive changes on a global level as further measures aimed at enhancing fair and transparent taxation are introduced.
The source of these changes is a combination of measures agreed at an OECD, EU and domestic level.
Notwithstanding significant developments in the global tax landscape, continuing to attract FDI remains a fundamental cornerstone of Irish tax policy and legislation. Ireland is taking steps to ensure that Ireland’s corporation tax regime will remain competitive, fair and sustainable. A review of Ireland’s R&D tax credit is expected in the coming year and the Irish government has established a Commission on Taxation and Welfare to conduct a comprehensive review of the Irish tax and welfare systems. This review extends to simplifying the Irish tax system and considering potential amendments to the personal tax regime to continue to attract mobile workers.
It is clear that 2022 and onwards into 2023 will be a transformative period in the international tax landscape as key new measures, such as the global minimum effective tax rate of 15% are implemented into Irish domestic legislation. We expect to see many of these changes introduced in this year’s Finance Bill to be published in October 2022.
On the Corporate Governance side, Covid-19 dominated the boardroom agenda for the past two years but, for companies and their boards, the focus now begins to shift towards the busy legislative slate ahead.
Domestically, themes such as investment screening, the establishment of the Corporate Enforcement Authority, an overhaul of the competition enforcement regime and the modernisation of laws governing certain corporate vehicles are expected to feature prominently.
Some emergency company law measures designed to facilitate the continuation of business during the pandemic will make their way permanently onto the statute books. EU commitments under the European Green Deal will begin to be felt in the boardroom. Irish companies will be keeping a close eye on developments in the ESG area. The Proposal for a Corporate Sustainability Reporting Directive would oblige companies in scope to report against common EU sustainability reporting standards. This will see a large number of companies being brought within the sustainability reporting regime for the first time. The related Proposal for a Corporate Sustainability Due Diligence Directive seeks to introduce a sustainability due diligence duty for large companies to address adverse human rights and environmental impacts. Early planning on the part of companies and their directors is key.
Key Themes in Taxation and Company Law
Update on the OECD’s two pillar approach
The landmark agreement reached by the international community in October 2021 will result in a major reform of the international tax system to address tax challenges arising from the digitalisation of the economy. This will be achieved with the adoption of the OECD’s Pillar One and Pillar Two proposals.
- Pillar One will introduce a new formulaic mechanism for allocating profits among multinational groups. It is expected that taxing rights on more than EUR 100 billion of profits will be reallocated to market jurisdictions each year under this mechanism.
- Pillar Two introduces a global minimum corporate tax rate set at 15%. The new minimum effective tax rate will apply to companies with revenue above EUR 750 million and it is expected to generate around EUR 130 billion in additional global tax revenues annually.
The OECD is moving ahead with an ambitious timeframe for this project, with effective implementation of the proposals targeted for 2023. Model rules in respect of both Pillars have been published by the OECD and public consultations are continuing. Therefore, we expect to see these rules being shaped and refined throughout 2022, with the final proposals implemented into Irish domestic legislation by 2023.
Importantly, Ireland’s headline 12.5% corporation tax rate will remain in force for businesses in Ireland with revenues below EUR 750 million. This will mean that there will be no increase in the corporate tax rate for over one hundred and sixty thousand businesses operating in Ireland.
In parallel with the OECD’s work plan, many new EU measures will also be implemented in 2022 and subsequent years aligning with the European Commission Tax Action Plan published in 2020. A common EU approach is emerging in certain areas such as transparency, information sharing and common rules on targeting tax advantages arising from mismatches between different regimes. Some key EU tax proposals include:
- ATAD III: In December 2021, the European Commission presented ATAD III, or the draft Directive known as the “unshell” proposal, to ensure that entities in the EU that have no or minimal economic activity are denied the benefit of certain tax advantages. If adopted, this Directive is proposed to come into effect on 1 January 2024.
- Public country-by-country reporting: Tax authorities within the EU have been exchanging a wide range of tax data since 2016. Under a new EU public country-by-country reporting Directive to be transposed by June 2023, much of this information will now be shared publicly by in-scope entities for financial years from June 2024.
- DAC 7: The latest iteration of the EU information sharing directives is DAC 7, which will extend the scope of the existing information exchange in 2023 to digital platforms that will be required to collect and report information on income realised by sellers on such digital platforms.
There are also a number of other EU tax proposals in the pipeline, including BEFIT, a new framework for income taxation for businesses in Europe, which aims to replace the previous proposals for a CCCTB by building on the approval of formulary apportionment in the global tax agreement. In addition, rules to incentivise investment in companies by way of equity rather than debt are also being proposed under the EU’s “DEBRA” initiative.
Ireland remains a willing participant in the ongoing process of global tax reform and fully supports most of these proposals. The move to a global minimum effective tax rate is a step towards greater tax certainty, which is widely welcomed by multinational taxpayers in Ireland. Importantly the 12.5% headline corporation tax rate will remain in force for companies below the Pillar Two revenue threshold of EUR 750 million revenue threshold. Ireland also intends to ensure that the use of R&D tax credits can continue to support innovation and growth in compliance with the OECD framework.
Aside from Ireland’s competitive tax regime, there are a myriad of reasons why Ireland is an attractive FDI location, including our highly skilled workforce, membership of the EU, vast treaty network and multitude of non-tax government incentives. A recent OECD report found that Ireland was the second most open economy to trade in in the OECD. This is also reflected in statements by the Irish Development Authority, (the "IDA") which confirmed that in 2020, Ireland actually increased its market share of Foreign Direct Investment into Europe in the face of global declines in FDI flows.
Overall, it is clear that the FDI pipeline looks to remain strong throughout 2022 and onwards.
Corporate Governance Developments
Foreign direct investment (“FDI”) remains a pillar of the Irish economy. An FDI screening regime is now firmly on the horizon, having been categorised as priority legislation in successive legislative agendas in recent times.
The recent introduction of an equivalent UK investment screening regime generated much attention. The fact that pre-legislative scrutiny has been waived may ease the passage of the (as yet unpublished) Investment Screening Bill but we can still expect policy debate in this area over the coming months.
The COVID-19 pandemic only served to intensify calls for investment screening in the period since the EU Investment Screening Regulation 2019/452 became operational in October 2020. The precise parameters of the proposed Irish regime and its interaction with existing merger clearance procedures will only become apparent upon publication.
The Companies (Corporate Enforcement Authority) Act 2021 became law on 22 December 2021 but awaits commencement. Its key aim is to establish the Corporate Enforcement Authority as a statutory agency with the autonomy and resources to respond effectively to white collar crime. The act also ‘fixes’ certain anomalies found in the Companies Act 2014.
While welcome, these amendments fall short of those recommended by the Company Law Review Group and other expert bodies. Further legislation will be required to address these anomalies but whether this will be within the Companies (Miscellaneous Provisions) Bill or elsewhere remains to be determined.
The proposed Corporate Sustainability Reporting Directive (“CSRD”) would oblige companies to report against common EU sustainability reporting standards. Some 11,000 EU companies are already covered by the CSRD’s predecessor, the Non-financial Reporting Directive 2014 ("NFRD") which was transposed into Irish law in 2017.
NFRD reporting requirements apply to large “public interest entities” with more than 500 employees. The CSRD will apply to all large EU companies (except listed micro-companies) bringing approximately 49,000 companies in scope of a more ambitious sustainability reporting regime.
Companies are likely to start reporting to the new standards in 2024, based on FY2023 information, with SMEs being given additional time. Now is the time for boards to plan for these significant changes coming down the tracks.
FDI Screening: EU Investment Screening Framework and Latest Irish Developments
In Ireland, the Department of Enterprise, Trade and Employment (Department) has assumed responsibility for any cooperation and information requests. In parallel, the Department is working on draft legislation that could result in the introduction of a fully-fledged regime and actual powers to review transactions (which it does not currently have) as early as 2021. Whilst the exact scope of any future Irish regime remains unclear at this stage, this could result in additional notification requirements for non-EU investors in Ireland that could impact deal planning.
EU Investment Screening Regulation Now Operational
EU Regulation 2019/452 establishes a framework for the screening of foreign direct investments into the EU (EU Investment Screening Regulation). As a result, effective 11 October 2020, the EU now has a regime for the screening of foreign direct investments whereby the Commission and individual Member States can exchange information and raise specific national security or public order concerns about potential investments in strategic EU companies by foreign (ie, non-EU) entities, including foreign state-owned firms, especially those involving critical infrastructure, critical technologies or the supply of critical inputs (see our previous article here).
In particular, the new EU framework introduces a number of mandatory cooperation and information sharing requirements between Member States and the Commission:
- For example, where a Member State has initiated its review of a proposed investment by a non-EU investor under its regime on or after 11 October 2020, it is required to provide the Commission and other Member States with a minimum level of information in relation to such investment, which may include a list of other Member States whose national security or public order may be affected, allowing the Commission or other Member States to provide comments in relation to such review;
- Similarly, where a Member State considers that an investment by a non-EU investor may affect national security or public order in another Member State or has relevant information in relation to that investment, it may provide comments to that other Member State and the Commission. This Member State or the Commission may also request information from the host Member State in relation to the investment; and
- The Commission may issue an opinion in relation to a proposed investment in certain circumstances, or may be requested to do so by one or more Member States.
As of 11 October 2020, according to the Commission, the operational requirements for the full application of the EU Investment Screening Regulation are in place, which include:
- Member States have now notified and provided details to the Commission regarding their existing national investment screening mechanisms (noting that 14 Member States have a FDI screening regime, which currently does not include Ireland, although legislation in relation to a possible future Irish regime is currently being considered – see below);
- Formal contact points have been established in each Member State to facilitate cooperation and information sharing between Member States and the Commission. The Department has been established as the national contact point in Ireland;
- Procedures for Member States and the Commission to ensure the prompt response to any concerns based on national security or public order or opinions issued by the Commission are being developed; and
- Lists of projects and programmes annexed to the EU Investment Screening Regulation which are of EU interest and may implicate national security or public order have been updated.
In Ireland, it remains the case that there is currently no FDI regime that enables scrutiny of investments by non-EU investors (see below). Notwithstanding the absence of any actual review powers, the Department would, in principle, be required to comply with the cooperation and information sharing requirements under the EU Investment Screening Regulation. Thus, the Department may provide comments in relation to live review processes in other Member States of which it is notified regarding investments by non-EU investors that may affect national security or public order. The Department would also need to give due consideration to any comments received by another Member State or to an opinion issued by the Commission in relation to any investment that is planned or completed in Ireland and may affect national security or public order. The Department may also be requested to provide information in relation to the non-EU investment by another Member State or the Commission. However, and critically, the Department will remain hamstrung to review and take any action in relation to non-EU investments on national security grounds and this will not change until it obtains specific statutory powers in this regard.
New Irish FDI legislation
While the necessary steps have been taken to enable Ireland to meet its obligations under the EU Investment Screening Regulation, Ireland does not currently have an FDI screening regime in place. Following our updates earlier this year (see here and here), draft legislation is currently being prepared to introduce powers to review investments by non-EU investors in sensitive industries that may give rise national security concerns. According to the Government press release, the proposed legislation will empower the Department to investigate, authorise, condition, prohibit or unwind foreign investments into Ireland by non-EU investors, based on a range of security and public order criteria. However, the draft legislation has not yet been published and so the exact scope of the future FDI regime is not yet clear – in particular, it is not clear what type of transactions are likely to be subject to review and the extent of that review, if the legislation is introduced.
We understand that the legislation could be adopted in the later part of H1 2021, but this could easily be delayed until H2 2021 or beyond. Whilst the exact scope of any future Irish regime remains to be seen, this could result in additional notification requirements for non-EU investors in Ireland that could impact deal planning. Depending on the proposed timeline for the transaction, it may be advisable to include a general protective condition precedent that envisages compliance with any future applicable requirements under future Irish legislation.
Finally, it should be noted the introduction of an Irish FDI regime would follow a similar trend across other major economies, noting the establishment and extension of similar regimes in the UK (see our recent article here), Europe (eg, Germany, France) and other Western countries (eg, the Committee on Foreign Investment or CFIUS regime in the US, the Investment Canada Act and the Foreign Investment Review Board regime in Australia).
Should you have any queries about the impact of Ireland’s future FDI screening regime on your business, please do not hesitate to contact your usual Matheson contact or any member of Matheson’s EU, Competition and Regulatory Group.