No. 38/1993:

AIR COMPANIES (AMENDMENT) ACT, 1993

ARRANGEMENT OF SECTIONS

Section

1. Interpretation.

2. Share capital of Holding Company.

3. Acquisition of shares in Holding Company, etc.

4. Purchase of additional shares of Holding Company by Minister for Finance.

5. Profit sharing schemes.

6. Amendment of section 1 of Principal Act.

7. Amendment of section 1 of Air Companies (Amendment) Act, 1976.

8. Directors of the Holding Company, etc.

9. Appointment of chairman and directors to existing companies, etc.

10. Remuneration of certain chief officers, etc.

11. Amendment of section 17 of Principal Act.

12. Construction of "air company" in section 20 of Principal Act.

13. Amendment of Worker Participation (State Enterprises) Acts, 1977 to 1991, etc.

14. Provisions relating to air companies generally.

15. Alteration, etc., of memoranda and articles of association of air companies, etc.

16. Provision of moneys for payments under this Act out of Central Fund, etc.

17. Expenses.

18. Repeal.

19. Short title, construction and collective citations.

ACTS REFERRED TO

Number 38 of 1993

AIR COMPANIES (AMENDMENT) ACT, 1993

AN ACT TO PROVIDE, CONSEQUENT ON THE INCORPORATION OF A COMPANY AS AER LINGUS GROUP PUBLIC LIMITED COMPANY, FOR THE EXCHANGE OF SHARES OF THE MINISTER FOR FINANCE IN AER LINGUS PUBLIC LIMITED COMPANY AND IN AERLÍNTE ÉIREANN PUBLIC LIMITED COMPANY FOR SHARES IN AER LINGUS GROUP PUBLIC LIMITED COMPANY, TO PROVIDE FOR THE TAKING UP BY THE SAID MINISTER OF FURTHER SHARES IN AER LINGUS GROUP PUBLIC LIMITED COMPANY, TO AMEND AND EXTEND, IN PARTICULAR IN RESPECT OF AIR COMPANIES AND SUBSIDIARIES THEREOF, THE AIR COMPANIES ACTS, 1966 TO 1983, AND THE WORKER PARTICIPATION (STATE ENTERPRISES) ACTS, 1977 TO 1991, AND TO PROVIDE FOR MATTERS CONNECTED WITH THE AFORESAID MATTERS.

[22nd December, 1993]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—(1) In this Act—

"the Act of 1977" means the Worker Participation (State Enterprises) Act, 1977 ;

"air companies" means the Holding Company and Aer Rianta cuideachta phoiblí theoranta and "air company" shall be construed accordingly;

"the Companies Acts" means the Companies Acts, 1963 to 1990, and every other enactment which is to be construed together as one with those Acts;

"the existing companies" means Aer Lingus public limited company and Aerlínte Éireann public limited company;

"the Minister" means the Minister for Transport, Energy and Communications;

"the Principal Act" means the Air Companies Act, 1966 ;

"subsidiary" has the same meaning as it has in section 155 of the Companies Act, 1963 .

(2) In this Act, a reference to "the Holding Company" shall be construed as a reference to a public limited company incorporated or to be incorporated in the State as Aer Lingus Group public limited company.

( 3 ) ( a ) A reference in this Act to a section is a reference to a section of this Act unless it is indicated that a reference to some other Act is intended.

( b ) A reference in this Act to a subsection or to a paragraph is to the subsection or paragraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

2.—The share capital of the Holding Company shall be such amount as may be determined from time to time by the Minister for Finance after consultation with the Minister.

3.—(1) All the shares of the Minister for Finance in the existing companies, including shares to which subsection (3) relates, shall be exchanged for shares in the Holding Company and that Minister shall take no further shares in either of the existing companies.

(2) Notwithstanding anything contained in the Companies Acts, all the shares held by Aerlínte Éireann public limited company in Aer Lingus public limited company shall be exchanged for shares in the Holding Company, which shares shall then be redeemed by the Holding Company.

( 3 ) ( a ) Notwithstanding anything contained in the Companies Acts, the share held by every director in each existing company shall, without the necessity of transfer, vest in the Minister for Finance upon payment by that Minister of the nominal value of each such share to the appropriate director, former director or legal representative of the former director, as the case may be.

( b ) Notwithstanding the construction of "air company" (inserted by this Act) in section 1 of the Principal Act, section 6 of that Act shall be construed as not applying to the Holding Company.

4.—In addition to the shares held or to be held, as appropriate, by the Minister for Finance in the Holding Company by virtue of section 3, the Minister for Finance may subscribe for further shares to an amount not exceeding £175,000,000.

5.—(1) The Holding Company may, subject to subsection (2), issue shares from time to time as part of one or more employee profit sharing schemes subject to such terms and conditions as may be approved by the Minister with the consent of the Minister for Finance.

(2) The aggregate amount of shares of the Holding Company standing issued at any time as part of one or more than one profit sharing scheme shall not exceed 5 per cent. of the total issued share capital of the Holding Company.

6.—Section 1 of the Principal Act is hereby amended by the substitution of the following for the definition and construction of "air companies" and "air company" respectively:

"'air companies" means Aer Lingus Group public limited company (being the company referred to as the Holding Company in the Air Companies (Amendment) Act, 1993 ) and Aer Rianta and 'air company' shall be construed accordingly;".

7.— Section 1 of the Air Companies (Amendment) Act, 1976 , is hereby amended by the substitution of the following for the definition and construction of "air companies" and "air company" respectively:

"'air companies' means Aer Lingus Group public limited company (being the company referred to as the Holding Company in the Air Companies (Amendment) Act, 1993 ) and Aer Rianta and 'air company' shall be construed accordingly;".

8.—(1) Section 12 of the Principal Act is hereby amended by the substitution for subsections (1) and (2) of the following subsection:

"(1) Subject to any order made under section 23 (as amended by the Worker Participation (State Enterprises) Act, 1988 ) of the Worker Participation (State Enterprises) Act, 1977 , and to section 8 (2) of the Air Companies (Amendment) Act, 1993 , the number of directors of Aer Lingus Group public limited company shall be such number not exceeding eight as the Minister may, with the consent of the Minister for Finance, from time to time determine.".

( 2 ) ( a ) The number of directors in the Holding Company shall be 12 and the appropriate number of those directors (being the appropriate number within the meaning assigned by section 23 (2) of the Act of 1977) shall be four.

( b ) Paragraph (a) shall be deemed to be an order duly made under section 23 of the Act of 1977.

( c ) Articles 2 and 4 of the Worker Participation (State Enterprises) Order, 1980 ( S.I. No. 100 of 1980 ), are hereby revoked.

(3) Every person who immediately before the commencement of this Act was a director of the existing companies by virtue of the Act of 1977 and to whom section 23 (2) of that Act relates shall, notwithstanding anything contained in the Companies Acts, for the remainder of such person's term of office—

( a ) upon the appointment of directors of the Holding Company under section 12 (as amended by this section) of The Principal Act, cease to be a director of the existing companies,

( b ) where willing, be appointed to be a director of the Holding Company as if duly appointed a director of the Holding Company under the Act of 1977 for the remainder of such term, and

( c ) where so appointed, be a director of the Holding Company upon such terms and conditions as correspond to the terms and conditions under which such person was such a director of the existing companies,

and the Act of 1977 shall be construed accordingly.

9.—(1) Notwithstanding anything contained in the Companies Acts, the chairman (whether so described or otherwise) and directors of—

( a ) each of the existing companies, and

( b ) any other subsidiary of either air company which the Minister may, by direction, specify for the purpose of this section,

shall be appointed, and may be removed from office by the Minister or, with the prior written consent of the Minister, by the Chairman of the air company of which it is a subsidiary.

(2) Notwithstanding anything contained in the Companies Acts, the person who is the chairman (whether so described or otherwise) of an air company may, with the consent of the Minister, be appointed on that person's own nomination to be chairman or a director of a subsidiary of the air company and may be removed from office by the Minister.

(3) For the purposes of subsection (1) (a) of this section, the directors shall include a representative of employee interests.

10.—There shall be paid by—

( a ) an air company,

( b ) an existing company, or

( c ) any other subsidiary of an air company as the Minister may, by direction, specify for the purposes of this section,

to the person who is its chief officer (whether the person is so described or otherwise) such remuneration and allowances as that air company, existing company or subsidiary (as the case may be) shall, with the written approval of the Minister given with the consent of the Minister for Finance, determine.

11.—Section 17 (which relates to furnishing of accounts to the Minister by air companies) of The Principal Act is hereby amended—

( a ) in subsection (1), by the insertion after "air company" of "and every subsidiary thereof (being a subsidiary within the meaning of section 155 of the Companies Act, 1963 ) as the Minister may specify by direction", and

( b ) in subsection (3), by the insertion after "furnished" of "by each air company".

12.—References in section 20 of the Principal Act (which relates to approval by the Minister of superannuation schemes for officers and servants of the air companies) shall be construed as including a reference to—

( a ) the existing companies, and

( b ) every other subsidiary of an air company in respect of which the Minister may, by direction, specify that his approval be sought for the purposes of and in accordance with the said section 20.

13.—(1) Section 1 (as amended by the Act of 1988) of the Act of 1977 is hereby amended—

( a ) by the substitution of the following for the definition of "Aer Lingus":

"'Aer Lingus' means Aer Lingus Group public limited company;",

( b ) by the deletion of the definition of "Aerlinte", and

( c ) in the definition of "employee", by the deletion of "and for the purposes of sections 9 (4) (w) and 10 of this Act, a person employed in such a capacity by Aerlinte under a contract shall be regarded as being an employee of Aer Lingus".

(2) Section 13 (as amended by the Act of 1988) of the Act of 1977 is hereby amended by the substitution of the following paragraph for paragraph (a) of subsection (I):

"( a ) a trade union or other body of persons which the returning officer is satisfied is both recognised for such purposes by that designated body and represents not less than fifteen per cent. of the employees of that body who are entitled to vote at the election, or".

(3) Section 20 of the Act of 1977 is hereby amended—

( a ) in subsections (1) to (3), by the deletion of "Aerlinte or" in each place where it occurs, and

( b ) in subsection (1), by the deletion of "company or" in each place where it occurs.

(4) Upon the appointment of the directors of the Holding Company in accordance with section 12 (as amended by this Act) of The Principal Act, section 28 of the Act of 1977 shall cease to have effect.

( 5 ) ( a ) The First Schedule (inserted by the Act of 1988) to the Act of 1977 is hereby amended—

(i) in Part II, by the substitution of "Aer Lingus Group public limited company" for "Aer Lingus public limited company", and

(ii) in Part III, by the insertion before "An Chomhairle Oiliúina Talmhaíochta" of the following:

"Aer Lingus public limited company

Aerlinte Éireann public limited company".

( b ) In respect of either of the existing companies, any subsisting arrangements to which section 3 or 4 of the Act of 1988 relates and any subsisting agreements to which section 6

(6) The Second Schedule (inserted by the Act of 1988) to the Act of 1977 is hereby amended in Part 1 by the substitution of "Aer Lingus Group public limited company" for "Aer Lingus public limited company".

( 7 ) ( a ) Every employee of the existing companies and TEAM Aer Lingus Limited shall, for the purposes of the Worker Participation (State Enterprises) Acts, 1977 to 1993, be regarded as an employee of the Holding Company.

( b ) Paragraph (a) shall be deemed to be an order duly made under section 9 of the Act of 1988.

( c ) The Worker Participation (State Enterprises) Act, 1988 (TEAM Aer Lingus Limited) Order, 1991 ( S.I. No. 113 of 1991 ), is hereby revoked.

(8) Section 1 of the Act of 1988 is hereby amended by the deletion of subsection (2).

(9) Section 3 of the Act of 1988 is hereby amended—

( a ) by the deletion of paragraph (a) (i) (I), and

( b ) in paragraph (a) (i) (II), by the deletion of "in the case of any other specified body".

(10) Section 9 of the Act of 1988 is hereby amended in subsection (4) (b) (i) by the substitution of "Aer Lingus Group public limited company" for "Aer Lingus".

(11) In this section "the Act of 1988" means the Worker Participation (State Enterprises) Act, 1988 .

14.—(1) No air company or a subsidiary thereof shall establish or acquire a subsidiary without the prior written approval of the Minister given with the consent of the Minister for Finance.

(2) The aggregate at any one time of the investment of any air company or subsidiary thereof in undertakings (other than subsidiaries of that air company or subsidiary) shall not exceed such amount as may be determined from time to time by the Minister with the consent of the Minister for Finance.

(3) Borrowings by a subsidiary shall be subject to the consent of the Minister for Finance, given after consultation with the Minister and subject to such terms and conditions as the Minister for Finance thinks fit.

15.—(1) The air companies and the existing companies shall take such steps as may be necessary under the Companies Acts—

( a ) in the case of the existing companies and Aer Rianta cuideachta phoiblí theoranta, to alter their memoranda and articles of association, and

( b ) in the case of the Holding Company, to draw up or alter, as appropriate, its memorandum and articles of association,

to make them consistent with this Act.

(2) A subsidiary of an air company shall take such steps as may be necessary under the Companies Acts to alter its memorandum and articles of association to make them consistent with this Act and any direction of the Minister under section 17 (1) (as amended by this Act) of The Principal Act or section 9, 10 or 12.

16.—(1) All moneys from time to time required by the Minister for Finance to meet sums payable by that Minister in accordance with section 4 shall be paid out of the Central Fund or the growing produce thereof to a special account.

(2) Subject to subsection (3), the moneys in the special account shall only be issued out of that account by direction of the Minister for Finance.

(3) Any moneys, including interest in the special account, if any, may be paid into, or disposed of for the benefit of, the Exchequer in accordance with the directions of the Minister for Finance.

(4) In this section "special account" means an account in the joint names of the Minister for Finance and the Minister, which account shall—

( a ) be an account with the Paymaster General, and

( b ) be subject to such terms and conditions as the Minister for Finance, in consultation with the Minister, may determine.

17.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

18.— Section 6 of the Air Companies (Amendment) Act, 1976 , is hereby repealed.

19.—(1) This Act may be cited as the Air Companies (Amendment) Act, 1993 .

( 2 ) ( a ) The Air Companies Acts, 1966 to 1983, and this Act, other than sections 8 (2) and 13 and paragraph (b), may be cited together as the Air Companies Acts, 1966 to 1993.

( b ) The Worker Participation (State Enterprises) Acts, 1977 to 1991, this paragraph, subsections (2) and (3) of section 8 and section 13 shall be construed together and may be cited together as the Worker Participation (State Enterprises) Acts, 1977 to 1993.