Central Bank and Financial Services Authority of Ireland Act 2004 (2004_act_21) | IE

ISB Act 2004-07-05

Schedule 1 Central Bank and Financial Services Authority of Ireland Act 2004 Open official source

SCHEDULE 1 Amendment of Acts Consequential on Insertion into Central Bank Act 1942 of Part IIIC

SCHEDULE 1

Amendment of Acts Consequential on Insertion into Central Bank Act 1942 of Part IIIC

Section 10(2).

PART 1 Amendment of Central Bank Act 1971

PART 1

Amendment of Central Bank Act 1971

Item

Provision affected

Amendment

1.

Section 21 (as substituted by section 38 of the Central Bank Act 1989)

Substitute the following section

“Bank may give certain directions to holders of licences.

21.—(1) In this section—

‘banking activity’ means—

(a) carrying on banking business, or

(b) making payments other than those that are specifically connected with carrying on banking business, or

(c) acquiring or disposing of assets or liabilities; ‘prescribed circumstance’, in relation to the holder of a licence, means any of the following: (a) the holder has become or is likely to become unable to meet its obligations to its creditors; (b) the holder is not maintaining or is unlikely to be in a position to maintain adequate capital resources having regard to the volume and nature of the holder's business; (c) the holder is failing or has failed to comply with a condition imposed in relation to the licence in accordance with section 10 and the circumstances are such that the Bank considers that the stability and soundness of the holder are or will be affected by the failure; (d) the holder is conducting business in such a manner as to jeopardise and prejudice the security of deposits taken by it or the rights and interests of persons who made those deposits; (e) the holder and one or more than one other entities are under common control (whether or not any such other entity holds a licence) and the Bank is of the opinion that the common control is not in the interest of persons who keep deposits with the holder; ‘specified’, in relation to a direction given under this section, means specified in the direction. (2) On becoming satisfied that it would be in the public interest to do so, or that a prescribed circumstance exists in relation to the holder of a licence, the Bank may, by direction given in writing, require the holder to suspend, for a specified period not exceeding 6 months, any specified banking activity except as authorised by the Bank. (3) A direction given under subsection (2) ceases to have effect— (a) at the end of the period specified in the direction, or (b) if, on the hearing of an appeal to the Irish Financial Services Appeals Tribunal under Part VIIA of the Central Bank Act 1942, that Tribunal has extended the period of operation of the direction, at the end of that extended period, or (c) on the making of a winding-up order in respect of the holder of the licence concerned, whichever first occurs. (4) While a direction under subsection (2) has effect— (a) winding-up or bankruptcy proceedings may be commenced in relation to the holder of the licence concerned, and (b) a receiver over the property of that holder may be appointed, and (c) the property of that holder may be attached, sequestered or otherwise distrained, only with the prior approval of the Court. (5) If the Bank is satisfied that, despite the fact that the holder of the licence concerned appears to it to be able to meet the obligations that the holder owes to its creditors, the circumstances that gave rise to the direction are unlikely to be rectified, it may, by further direction, require the holder— (a) to prepare, in consultation with the Bank, a scheme for the orderly termination of his banking business and the discharge of the holder's liabilities to persons who have deposits maintained with the holder under the supervision of the Bank, and (b) to submit the scheme to the Bank for its approval within 2 months after the giving of the further direction. (6) The Bank may approve or refuse to approve a scheme submitted to it under subsection (5). In approving such a scheme, the Bank may impose such conditions as it considers appropriate. (7) If the holder of the licence to whom a direction has been given under this section— (a) fails to comply with the direction, or (b) fails to comply with the terms of a scheme approved by the Bank under subsection (6), the Court may, on the application of the Bank, make such order as the Court considers appropriate, including an order of committal or a winding-up order on the ground that it is just and equitable that the holder should be wound up. (8) If a winding-up order is made in proceedings brought under this section against the holder of a licence to whom a direction has been given under this section, the Companies Acts apply to the holder in the same way as if the order had been made on a winding-up petition under those Acts and as if for any reference in that law to the presentation of the winding-up petition there were substituted a reference to the making of the winding-up order under this section. (9) The Bank may, by notice in writing given to the holder of the licence concerned, vary or revoke a direction given under this section. However, the Bank may not vary a direction given under subsection (2) by extending the operation of the direction for a period exceeding 12 months from the date on which the direction first took effect. (10) A direction given by the Bank under this section, and any variation of the direction under subsection (9), are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942. (11) For the purpose of paragraph (e) of the definition of ‘prescribed circumstance’ in subsection (1), the holder of a licence and one or more than one other entities are taken to be under common control if the decision as to how or by whom each are managed can be made by the same person or by the same group of persons acting in concert.”.

(c) acquiring or disposing of assets or liabilities;

‘prescribed circumstance’, in relation to the holder of a licence, means any of the following

(a) the holder has become or is likely to become unable to meet its obligations to its creditors;

(b) the holder is not maintaining or is unlikely to be in a position to maintain adequate capital resources having regard to the volume and nature of the holder's business;

(c) the holder is failing or has failed to comply with a condition imposed in relation to the licence in accordance with section 10 and the circumstances are such that the Bank considers that the stability and soundness of the holder are or will be affected by the failure;

(d) the holder is conducting business in such a manner as to jeopardise and prejudice the security of deposits taken by it or the rights and interests of persons who made those deposits;

(e) the holder and one or more than one other entities are under common control (whether or not any such other entity holds a licence) and the Bank is of the opinion that the common control is not in the interest of persons who keep deposits with the holder;

‘specified’, in relation to a direction given under this section, means specified in the direction.

(2) On becoming satisfied that it would be in the public interest to do so, or that a prescribed circumstance exists in relation to the holder of a licence, the Bank may, by direction given in writing, require the holder to suspend, for a specified period not exceeding 6 months, any specified banking activity except as authorised by the Bank.

(3) A direction given under subsection (2) ceases to have effect—

(a) at the end of the period specified in the direction, or

(b) if, on the hearing of an appeal to the Irish Financial Services Appeals Tribunal under Part VIIA of the Central Bank Act 1942, that Tribunal has extended the period of operation of the direction, at the end of that extended period, or

(c) on the making of a winding-up order in respect of the holder of the licence concerned,

whichever first occurs.

(4) While a direction under subsection (2) has effect—

(a) winding-up or bankruptcy proceedings may be commenced in relation to the holder of the licence concerned, and

(b) a receiver over the property of that holder may be appointed, and

(c) the property of that holder may be attached, sequestered or otherwise distrained,

only with the prior approval of the Court.

(5) If the Bank is satisfied that, despite the fact that the holder of the licence concerned appears to it to be able to meet the obligations that the holder owes to its creditors, the circumstances that gave rise to the direction are unlikely to be rectified, it may, by further direction, require the holder—

(a) to prepare, in consultation with the Bank, a scheme for the orderly termination of his banking business and the discharge of the holder's liabilities to persons who have deposits maintained with the holder under the supervision of the Bank, and

(b) to submit the scheme to the Bank for its approval within 2 months after the giving of the further direction.

(6) The Bank may approve or refuse to approve a scheme submitted to it under subsection (5). In approving such a scheme, the Bank may impose such conditions as it considers appropriate.

(7) If the holder of the licence to whom a direction has been given under this section—

(a) fails to comply with the direction, or

(b) fails to comply with the terms of a scheme approved by the Bank under subsection (6),

the Court may, on the application of the Bank, make such order as the Court considers appropriate, including an order of committal or a winding-up order on the ground that it is just and equitable that the holder should be wound up.

(8) If a winding-up order is made in proceedings brought under this section against the holder of a licence to whom a direction has been given under this section, the Companies Acts apply to the holder in the same way as if the order had been made on a winding-up petition under those Acts and as if for any reference in that law to the presentation of the winding-up petition there were substituted a reference to the making of the winding-up order under this section.

(9) The Bank may, by notice in writing given to the holder of the licence concerned, vary or revoke a direction given under this section. However, the Bank may not vary a direction given under subsection (2) by extending the operation of the direction for a period exceeding 12 months from the date on which the direction first took effect.

(10) A direction given by the Bank under this section, and any variation of the direction under subsection (9), are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942.

(11) For the purpose of paragraph (e) of the definition of ‘prescribed circumstance’ in subsection (1), the holder of a licence and one or more than one other entities are taken to be under common control if the decision as to how or by whom each are managed can be made by the same person or by the same group of persons acting in concert.”.

PART 2 Amendment of Insurance Act 1989

PART 2

Amendment of Insurance Act 1989

Item

Provision affected

Amendment

1.

Section 18

Substitute the following subsections for subsections (5) to (9)

“(5) A direction under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(6) The Bank may from time to time vary or revoke a direction given under this section.”.

2.

Section 31

Repeal subsections (2), (4), (5) and (7).

3.

Section 58

Substitute the following subsection for subsections (6) and (7)

“(6) A decision of the Bank revoking or suspending an authorisation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

PART 3 Amendment of Building Societies Act 1989

Amendment of Building Societies Act 1989

Item

Provision affected

Amendment

1.

Section 10

Substitute the following subsections for subsection (4)

“(4) If the Central Bank decides to refuse to register a memorandum and rules, it shall, within 6 months after the relevant date, notify the signatories of the memorandum and the rules of its decision and of its reasons for it. The relevant date is—

(a) the date of delivery of the rules and memorandum, or

(b) the date of receipt of such other information as the Central Bank requires for the purpose of deciding whether or not to register the rules and memorandum,

whichever is the later.

(4A) A refusal to register a memorandum and rules is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. However, the Irish Financial Services Appeals Tribunal may hear and determine an appeal against such a refusal only if made by at least 10 signatories of the memorandum and rules.”.

2.

Section 14

Substitute the following subsection for subsection (5)

“(5) If the Central Bank refuses to register under subsection (3) a copy of an alteration delivered to it under subsection (2), it shall, within 2 months of the receipt by it of the copies, notify the society of its decision and of its reasons for it. Such a refusal is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

3.

Section 40

Insert the following subsection after subsection (6)

“(7) The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942

(a) a decision of the Central Bank revoking a society's authorisation otherwise than at the request of the society;

(b) a decision of the Central Bank directing a society to suspend for a specified period—

(i) the raising of funds, or

(ii) the making of payments, or

(iii) the acquisition or disposal of other assets or liabilities.”.

4.

Section 110

(a) Substitute the following subsection for subsection (5)

“(5) The cancellation of the registration of a society under subsection (2) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

(b) Substitute the following subsection for subsection (6)

“(6) A society ceases to be a building society within the meaning of this Act if the registration of the society is cancelled under subsection (2) or (3). This subsection is subject to any decision arising from an appeal against the decision under Part VIIA of the Central Bank Act 1942.”.

5.

Fourth Schedule

In paragraph 1, substitute the following subparagraph for subparagraph (3)

“(3) The Central Bank shall, before deciding whether or not to revoke the authorisation, consider any representations made to it under subparagraph (1) or (2) in relation to the proposed revocation and shall serve on the society and on every officer a notice stating its decision and the grounds for it.”.

6.

Fifth Schedule

Repeal the Schedule.

PART 4 Amendment of stock exchange act 1995

PART 4

Amendment of stock exchange act 1995

Item

Provision affected

Amendment

1.

Section 10

Substitute the following subsection for subsections (3) and (4)

“(3) A direction given under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

2.

Section 11

Substitute the following subsection for subsection (3)

“(3) The imposition of a condition or requirement under subsection (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

3.

Section 14

Substitute the following section for section 14

Bank may revoke approval of stock exchange.

14.—(1) The Bank may revoke the approval of an approved stock exchange on a request made to it by or on behalf of the exchange.”. (2) The Bank may also revoke the approval of an approved stock exchange on any of the following grounds

14.—(1) The Bank may revoke the approval of an approved stock exchange on a request made to it by or on behalf of the exchange.”.

(2) The Bank may also revoke the approval of an approved stock exchange on any of the following grounds

(a) that the exchange has failed to operate as an approved stock exchange within 12 months of the date on which the approval was granted;

(b) that the exchange has failed to operate as an approved stock exchange for a period of more than 6 months;

(c) that the exchange is being wound up;

(d) that it is expedient to revoke the approval in the interest of the proper and orderly regulation of approved stock exchanges or in order to protect investors;

(e) that the exchange has been convicted on indictment of an offence under this Act or any other designated enactment or designated statutory instrument, or an offence involving fraud, dishonesty or breach of trust;

(f) that circumstances have materially changed since the granting of approval to the exchange such that, if an application for approval was made at the relevant time, a different decision would be taken in relation to the application for approval;

(g) that the approval was obtained by providing statements or information known by the applicant for approval to be false or misleading;

(h) that the exchange no longer complies with capital or other financial requirements, specified by the Bank from time to time;

(i) that the exchange is not maintaining or is unlikely to be able to maintain adequate capital or other financial resources having regard to the volume and nature of its business;

(j) that the exchange has become unable or is, in the opinion of the Bank, likely to become unable to meet its obligations to its creditors;

(k) that the exchange has failed to comply to a material degree with a requirement of this Act;

(l) that the exchange has failed to comply with a condition or requirement that was imposed when approval was granted or was imposed later;

(m) that the exchange has suspended payments lawfully due;

(n) that the Bank considers that any director, manager or qualifying shareholder of the exchange no longer complies with the conditions of competence and probity required by section 9;

(o) that the exchange has so organised itself that it, and any related undertaking or associated undertaking, either collectively or individually, is no longer capable of being regulated to the satisfaction of the Bank under this Act.

(3) The Bank may not revoke the approval of a stock exchange unless it has served notice on the exchange of its proposal to revoke the approval. The notice must include a statement of the Bank's reasons for proposing to revoke the approval.

(4) If the approval of a stock exchange is revoked and the exchange is not a company that is being wound up, the following provisions apply

(a) the exchange and its members continue to have the obligations imposed by this Act until all of its liabilities and other obligations have been discharged to the satisfaction of the Bank;

(b) the exchange shall, as soon as possible after the revocation, notify the Bank, the members of the exchange and such other persons as the Bank specifies of the measures being taken to discharge without delay the liabilities and other obligations of the exchange.

(5) If—

(a) a former approved stock exchange has not notified the Bank in accordance with paragraph (b) of subsection (4), or

(b) a former approved stock exchange has notified the Bank in accordance with that paragraph but the Bank is of the opinion that the measures being taken or proposed to be taken for the purposes of that paragraph are not satisfactory, or

(c) a former approved stock exchange has notified the Bank in accordance with that paragraph but the Bank is of the opinion that the exchange has failed to take all reasonable steps to notify persons specified by the Bank under that paragraph.

the Bank may, by direction given in writing, prohibit the exchange from doing all or any of the following without the prior authorisation of the Bank for such period, not exceeding six months, as is specified in the notice

(i) creating liabilities;

(ii) dealing with, or disposing of, assets or specified assets of the exchange, or of members of the exchange, in any manner;

(iii) engaging in any kind of transaction, or in any specified transaction or class of transactions;

(iv) making payments to any person.

(6) If the Bank has given a direction under subsection (5), the Bank may further direct the former approved stock exchange to prepare and submit to the Bank for its approval, within 2 months of the earlier direction, a scheme for the orderly discharge of the liabilities and other obligations of the exchange.

(7) A former approved stock exchange to which a direction has been given under this section shall comply with the direction. Each person who, immediately before the approval of the stock exchange was revoked, was concerned in the management of the exchange, shall ensure that the former approved stock exchange complies with the direction.

(8) If the approval of an approved stock exchange is revoked and the exchange is a company that is being wound up, the following provisions apply

(a) the liquidator of the exchange has, in addition to the liquidator's obligations in respect of the winding-up, the same obligations as the exchange would have had if it were a former approved stock exchange to which subsection (4) applies;

(b) despite paragraph (a) of this subsection, the Bank may, by notice in writing given to the exchange, discharge the liquidator from complying with the obligations imposed by paragraph (b) of subsection (4) and impose on the liquidator such other obligations corresponding to those set out in that paragraph as the Bank considers appropriate.

(9) Nothing in subsection (8) affects an obligation under this Act of any of the members of the former approved stock exchange concerned.

(10) Within 28 days after revoking the approval of an approved stock exchange under this section, the Bank shall publish a notice of the revocation in Iris Oifigiúil and in at least one newspaper that circulates within the State.

(11) A stock exchange whose approval is revoked under this section shall cease to operate as an approved stock exchange from the date on which it is notified of the revocation.

(12) A person shall not, without the consent of the Bank, provide an investment service on premises knowing that the premises were formerly used as a stock exchange by a stock exchange whose approval has been revoked.

(13) The revocation of an approval by the Bank and the giving of a direction under this section are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942.

(14) The Bank may not exercise its power under subsection (2)(n) in respect of an approved stock exchange unless it has given the exchange an opportunity to remove the director or manager from office or otherwise deal with the concerns of the Bank in relation to the probity or competence of the person within such period as the Bank specifies.

(15) A person who fails to comply with subsection (7) or (11) or contravenes subsection (12) commits an offence.”.

4.

Section 18

Substitute the following subsections for subsection (3)

“(3) The Bank shall not refuse an application for an authorisation unless it has served on the applicant a notice of its intention to refuse the application. The notice must include a statement of the grounds on which it is proposed to refuse the application.

(3A) The refusal by the Bank to grant an authorisation to a proposed member firm under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

5.

Section 20

Substitute the following subsections for subsection (3)

“(3) If the Bank does not communicate the information as required by subsection (2), it shall give reasons for the refusal to the authorised member firm concerned.

(3A) A failure or refusal by the Bank to comply with subsection (2) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

6.

Section 21

Substitute the following subsection for subsections (3) and (4)

“(3) The imposition by the Bank of a condition or requirement under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

7.

Section 22

Substitute the following subsection for subsection (3)

“(3) The imposition by the Bank of a condition or requirement under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

8.

Section 23

Substitute the following subsections for subsection (2)

“(2) If the Bank refuses to consent to an amendment of or addition to the memorandum of association or articles of association of an authorised member firm, it shall serve a notice on the firm stating that it refuses to consent to the amendment or addition. The notice must include a statement of the reasons for the refusal.

(3) The refusal of the Bank to consent to an amendment or addition to the memorandum of association or articles of association of an authorised member firm is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

9.

Section 24

Substitute the following section for section 24

“Bank may revoke authorisation of member firm.

24.—(1) The Bank may revoke the authorisation of an authorised member firm on a request made to it by or on behalf of the firm. (2) The Bank may also revoke the authorisation of an authorised member firm on any of the following grounds

24.—(1) The Bank may revoke the authorisation of an authorised member firm on a request made to it by or on behalf of the firm.

(2) The Bank may also revoke the authorisation of an authorised member firm on any of the following grounds

(a) that the firm has failed to operate as an authorised member firm within 12 months of the date on which the authorisation was granted;

(b) that the firm has failed to operate as an authorised member firm for a period of more than 6 months;

(c) that the firm is being wound up;

(d) that it is expedient to revoke the authorisation in the interest of the proper and orderly regulation of authorised member firms or in order to protect investors;

(e) that the firm has been convicted on indictment of an offence under this Act or any other designated enactment or designated statutory instrument, or an offence involving fraud, dishonesty or breach of trust;

(f) that circumstances have materially changed since the granting of authorisation to the firm such that, if an application for authorisation was made at the relevant time, a different decision would be taken in relation to the application for authorisation;

(g) that the authorisation was obtained by providing statements or information known by the applicant for authorisation to be false or misleading;

(h) that the firm no longer complies with capital or other financial requirements, specified by the Bank from time to time;

(i) that the firm is not maintaining or is unlikely to be able to maintain adequate capital or other financial resources having regard to the volume and nature of its business;

(j) that the firm has become unable or is, in the opinion of the Bank, likely to become unable to meet its obligations to its creditors;

(k) that the firm is failing or has failed to comply to a material degree with a condition or requirement imposed by or under this Act;

(l) that the firm has suspended payments lawfully due;

(m) that the Bank considers that any director, manager or qualifying shareholder of the firm no longer complies with the conditions of competence and probity required by section 18;

(n) the firm has so organised itself that it, and any related undertaking or associated undertaking, either collectively or individually, is no longer capable of being regulated to the satisfaction of the Bank under this Act.

(3) The Bank may not revoke the authorisation of a member firm unless it has served notice on the firm of its proposal to revoke the authorisation. The notice must include a statement of the Bank's reasons for proposing to revoke the authorisation.

(4) If a member firm's authorisation is revoked, the firm and every person who was concerned in the management of the firm immediately before the revocation are jointly and severally responsible for ensuring the discharge of all undischarged contracts entered into by the firm before the authorisation was revoked, unless the Bank gives a direction in writing to the contrary.

(5) If the authorisation of a member firm is revoked and the firm is not insolvent, the following provisions apply

(a) the firm and its members continue to have the obligations imposed by or under this Act, or by the rules of the approved stock exchange concerned, until all of its liabilities and other obligations have been discharged to the satisfaction of the Bank;

(b) the firm shall, as soon as possible after the revocation, notify the Bank, the members of the firm and such other persons as the Bank specifies of the measures being taken to discharge without delay the liabilities and other obligations of the firm.

(6) If—

(a) a former authorised member firm has not so notified the Bank in accordance with paragraph (b) of subsection (5), or

(b) a former authorised member firm has notified the Bank in accordance with that paragraph but the Bank is of the opinion that the measures being taken or proposed to be taken for the purposes of that paragraph are not satisfactory, or

(c) a former authorised member firm has notified the Bank in accordance with that paragraph but the Bank is of the opinion that the firm has failed to take all reasonable steps to notify persons specified by the Bank under that paragraph,

the Bank may, by direction given in writing, prohibit the firm from doing all or any of the following without the prior authorisation of the Bank for such period, not exceeding six months, as is specified in the notice

(i) creating liabilities;

(ii) dealing with, or disposing of, assets or specified assets of the firm, or of members of the firm, in any manner;

(iii) engaging in any kind of transaction, or in any specified transaction or class of transactions;

(iv) making payments to any person.

(7) If the Bank has given a direction under subsection (6), the Bank may further direct the former authorised member firm to prepare and submit to the Bank for its authorisation, within 2 months of the earlier direction, a scheme for the orderly discharge of the liabilities and other obligations of the firm.

(8) A former authorised member firm to which a direction has been given under this section shall comply with the direction. If the firm is a body (whether incorporate or unincorporated), each person who, immediately before the authorisation of the member firm was revoked, was concerned in the management of the firm, shall ensure that the former authorised member firm complies with the direction.

(9) If the authorisation of an authorised member firm is revoked and the firm is insolvent, the following provisions apply

(a) a liquidator or receiver of the firm has, in addition to the obligations the liquidator or receiver has in respect of the winding-up, the same obligations as the firm would have had if it were a former authorised member firm to which subsection (5) of this section applies;

(b) despite paragraph (a) of this subsection, the Bank may, by notice in writing given to the firm, discharge the liquidator or receiver from complying with the obligations imposed by paragraph (b) of subsection (5) and impose on the liquidator or receiver such other obligations corresponding to those set out in that paragraph as the Bank considers appropriate.

(10) Nothing in subsection (9) affects any obligation under this Act of any of the members of the former authorised member firm concerned.

(11) Within 28 days after revoking the authorisation of an authorised member firm under this section, the Bank shall publish a notice of the revocation in Iris Oifigiúil and in at least one daily newspaper that circulates within the State.

(12) A member firm whose authorisation is revoked under this section shall cease to operate as an authorised member firm from the date on which it is notified of the revocation.

(13) The revocation of an authorisation by the Bank and the giving of a direction under this section are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942.

(14) The Bank may not exercise its power under subsection (2)(m) in respect of an authorised member firm unless it has given the firm an opportunity to remove, within such period as the Bank specifies, the director or manager from office or otherwise deal with the concerns of the Bank in relation to the probity or competence of the person.

(15) For the purposes of this section, an authorised member firm is insolvent if—

(a) being a company, the company is being wound up, or

(b) being an unincorporated body of persons, the body is the subject of a dissolution order, or

(c) being a natural person, the person is adjudicated bankrupt.

(16) A person who fails to comply with subsection (8) or (12) commits an offence.”.

10.

Section 29

Substitute the following subsections for subsections (5) and (6)

“(5) A direction given under this section takes effect on a date specified by the Bank.

(6) A direction given under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(6A) On hearing an appeal against such a direction under Part VIIA of the Central Bank Act 1942, the Irish Financial Services Appeals Tribunal may hear evidence from creditors.”.

11.

Section 33

Substitute the following subsection for subsection (3)

“(3) A direction given by the Bank under subsection (2) that an approved stock exchange or authorised member firm shall not reappoint a person to the office of auditor is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 at the instance of that person.”.

12.

Section 37

Substitute the following section for section 37

“Bank may disqualify officers and employees of stock exchanges and member firms in certain circumstances.

37.—(1) On becoming aware that the probity of a person who is an officer or employee of an approved stock exchange or authorised member firm is such so as to render the person unsuitable to be an officer or employee of an approved stock exchange or authorised member firm, the Bank may, by notice in writing given to the person and to the exchange or firm, direct the exchange or firm to remove the person from office or to dismiss the person from its employment. (2) If the Bank becomes aware that a person who is an officer or employee of an approved stock exchange or authorised member firm is not competent in respect of matters of the kind with which the person would be concerned as an officer or employee of an approved stock exchange or an authorised member firm, the Bank may, by notice in writing given to the person and to the exchange or firm, direct the exchange or firm—

37.—(1) On becoming aware that the probity of a person who is an officer or employee of an approved stock exchange or authorised member firm is such so as to render the person unsuitable to be an officer or employee of an approved stock exchange or authorised member firm, the Bank may, by notice in writing given to the person and to the exchange or firm, direct the exchange or firm to remove the person from office or to dismiss the person from its employment.

(2) If the Bank becomes aware that a person who is an officer or employee of an approved stock exchange or authorised member firm is not competent in respect of matters of the kind with which the person would be concerned as an officer or employee of an approved stock exchange or an authorised member firm, the Bank may, by notice in writing given to the person and to the exchange or firm, direct the exchange or firm—

(a) in the case of an officer, to remove the person from office or to suspend the person from office for a specified period, or

(b) in the case of an employee, to dismiss the person from its employment or to remove the person from a particular sector of employment.

(3) An approved stock exchange, an authorised member firm or any other entity that the Bank supervises or regulates as part of its statutory functions shall not, without the written consent of the Bank, employ in any capacity a person knowing that the person is the subject of a direction given under this section.

(4) A direction under this section must specify the date on which it is to take effect.

(5) The Bank may consent to the employment of a person who is the subject of a direction given under this section. The consent may—

(a) relate to employment with any entity that the Bank supervises or regulates as part of its statutory functions generally or to employment of a particular kind, and

(b) be given subject to conditions or requirements or both, and

(c) be varied by the Bank from time to time.

(6) Any person who accepts or continues in employment in contravention of a direction given under this section commits an offence.

(7) A direction given by the Bank under this section and the refusal of the Bank to give consent under subsection (5) are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942.

(8) The Bank may, by notice in writing given to the person concerned, revoke or vary a direction given under this section.”.

13.

Section 46

Substitute the following section for section 46

“Decision of Bank with respect to acquiring transactions under section 40 to be appealable.

46.—The refusal of the Bank to approve an acquiring transaction in accordance with section 40 and the imposition of conditions or requirements on approving such a transaction are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942.”.

14.

Section 70

In subsection (1)—

(a) substitute “14(15)” for “14(8)”, and

(b) substitute “24(16)” for “24(9)”, and

(c) substitute “37(3) and (6)” for “37(6)”.

15.

First Schedule

Substitute the following Schedule for the First Schedule

“FIRST SCHEDULE Section 29.

“FIRST SCHEDULE

Section 29.

Supplementary Provisions in Relation to a Direction by the Bank under Section 29

Interpretation: First Schedule.

1. In this Schedule—

‘direction’ means a direction given by the Bank under section 29 of this Act;

‘stock exchange’ includes—

(a) a proposed stock exchange, and

(b) an approved stock exchange, and

(c) a former approved stock exchange, and

(d) directors and those responsible for the management of an approved stock exchange or former approved stock exchange;

‘member firm’ includes—

(a) a proposed member firm, and

(b) an authorised member firm, and

(c) a former authorised member firm, and

(d) directors and those responsible for the management of an authorised member firm or former authorised member firm.

Bank may revoke direction.

2. The Bank may revoke a direction unless the Irish Financial Services Appeals Tribunal has made an order in respect of the direction on the hearing of an appeal against the direction under Part VIIA of the Central Bank Act 1942.

Effect of direction confirmed by Irish Financial Services Appeals Tribunal on appeal.

3. (1) A direction confirmed by the Irish Financial Services Appeals Tribunal on the determination of an appeal made by a stock exchange terminates—

(a) at the end of the period of operation specified by that Tribunal, or

(b) on that Tribunal making an order for quashing the direction, or

(c) on the making of a winding-up order in respect of the stock exchange, or

(d) on the making by that Tribunal of an order for termination where it considers that the circumstances that gave rise to the direction have ceased to exist and that it would be unjust and inequitable not to make the order,

whichever first occurs.

(2) A direction confirmed by the Irish Financial Services Appeals Tribunal on the determination of an appeal made by a member firm terminates—

(a) at the end of the period of operation specified by that Tribunal, or

(b) on that Tribunal making an order for quashing the direction, or

(c) if—

(i) the firm is a company, on the making of a winding-up order in respect of the firm, or

(ii) if the firm is an unincorporated body, on the making of a dissolution order in respect of the firm,

(d) on the making by that Tribunal of an order for termination where it considers that the circumstances that gave rise to the direction have ceased to exist and that it would be unjust and inequitable not to make the order,

whichever first occurs.

Bank may direct stock exchange or member firm to prepare scheme for termination of its business.

4. If the Bank considers that the stock exchange or member firm to which the direction was given is able to meet its obligations to its creditors, investors or clients but the circumstances that gave rise to the direction are unlikely to be rectified, it may, by notice in writing, direct the firm—

(a) to prepare, in consultation with the Bank, a scheme for the orderly termination of its business and the discharge of its liabilities to its creditors, investors and clients under the supervision of the Bank, and

(b) to submit the scheme to the Bank for approval within 2 months after the giving of the notice.

Stock Exchange or member firm may appeal against direction of Bank.

5. A direction given by the Bank under this Schedule is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

Consequences of failing to comply with direction of Bank.

6. (1) If a stock exchange or a member firm—

(a) fails to comply with a direction given by the Bank under this Schedule, or

(b) fails to comply with the terms of a scheme prepared and submitted by the firm and approved by the authority,

the Bank may apply to the Court for an order under subparagraph (2).

(2) On the hearing of an application made under subparagraph (1), the Court may make—

(a) in the case of a stock exchange, an order for the winding-up of the exchange on the ground that it is just and equitable that it should be wound up, or

(b) in the case of a member firm that is a company, an order for the winding-up of the firm on the ground that it is just and equitable that it should be wound up, or

(c) in the case of a member firm that is an unincorporated body, an order for the dissolution of the firm on the grounds that it is just and equitable that the firm should be dissolved.

Bank may revoke or amend direction.

7. The Bank may, by notice in writing given to the stock exchange or member firm concerned, revoke or vary a requirement imposed by it under this Schedule.

Obligation of stock exchange or member firm when given a direction under section 29.

8. (1) On being given a direction—

(a) the stock exchange or member firm concerned shall take all necessary steps to ensure that its assets, or its client or investor assets wherever held, are not depleted without the prior authorisation of the Bank, and

(b) the Bank may direct—

(i) a credit institution or any institution exempted under section 7 of the Central Bank Act 1971, or

(ii) any other financial institution that holds an account of any description of the firm (including holdings of investment instruments of the firm to which the direction has been given),

to cease making payments from, or entering into other transactions in respect of, the account without the prior authorisation of the Bank.

(2) An institution to which a direction is given under subparagraph (1)(b) shall comply with the direction within such period as is specified in the direction.”.

PART 5 Amendment of Investment Intermediaries Act 1995

PART 5

Amendment of Investment Intermediaries Act 1995

Item

Provision affected

Amendment

1.

Section 10

Substitute the following subsections for subsection (3)

“(3) If a supervisory authority refuses to grant authorisation to a proposed investment business firm under this section, it shall serve notice on the proposed investment business firm of its intention to refuse to authorise it. The notice must include a statement setting out the reasons for the refusal.

(3A) A decision of a supervisory authority refusing to grant authorisation to a proposed investment business firm under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

2.

Section 12

Substitute the following subsections for subsection (3)

“(3) If the supervisory authority acting as a competent authority fails or refuses to communicate the information in the manner referred to in subsection (2), it shall give reasons for the failure or refusal to the authorised investment business.

(3A) A failure or refusal of a supervisory authority to communicate the information in the manner referred to in subsection (2) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

3.

Section 13

Substitute the following subsection for subsections (3) and (4)

“(3) A decision of the supervisory authority imposing a condition or requirement under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

4.

Section 13A (as inserted by section 17 of the Insurance Act 2000)

Substitute the following subsection for subsections (4) and (5)

“(4) A decision of the supervisory authority imposing a condition or requirement under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

5.

Section 14

Substitute the following subsection for subsection (3)

“(3) A decision of the supervisory authority imposing a condition or requirement under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

6.

Section 15

Substitute the following subsections for subsection (2)

“(2) If a supervisory authority refuses to consent to an amendment of or addition to the memorandum of association, or articles of association, of an authorised investment business firm, it shall serve notice on the authorised investment business firm concerned stating that it refuses to consent to the amendment or addition. The notice must set out the reasons for the refusal.

(3) A refusal by the supervisory authority to consent to an amendment of or addition to the memorandum of association, or articles of association, of an authorised investment business firm is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

7.

Section 16

Substitute the following section for section 16

“Supervisory authority may revoke authorisation in certain circumstances.

16.—(1) A supervisory authority may revoke the authorisation of an authorised investment business firm on a request being made to it by or on behalf of the firm. (2) A supervisory authority may also revoke the authorisation of an authorised investment business firm on the following grounds

16.—(1) A supervisory authority may revoke the authorisation of an authorised investment business firm on a request being made to it by or on behalf of the firm.

(2) A supervisory authority may also revoke the authorisation of an authorised investment business firm on the following grounds

(a) that the firm has failed to operate as an investment business firm within 12 months of the date on which it was authorised under this Act;

(b) that the firm has failed to operate as an investment business firm for a period of more than six months;

(c) that the firm is being wound up;

(d) that it is expedient to do so in the interests of the proper and orderly regulation and supervision of investment business firms or in order to protect investors or in any or all of these circumstances;

(e) that the firm has been convicted on indictment of an offence under this Act or any other designated enactment or designated statutory instrument, or any offence involving fraud, dishonesty or breach of trust;

(f) that circumstances have materially changed since the granting of the authorisation such that, if an application for authorisation were made at the relevant time, it is likely that the supervisory authority would have made a different decision with respect to the application for authorisation;

(g) that the authorisation was obtained by making statements, or providing information, that the applicant for authorisation knew or ought to have known were false or misleading;

(h) that the firm has systematically failed to comply with a condition or requirement of this Act, or has failed to comply to a material degree with a condition or requirement of this Act;

(i) that the firm no longer fulfils conditions or requirements that were imposed either when the firm's authorisation was granted or at a later time;

(j) that the firm no longer complies with capital or any other financial requirements specified by the supervisory authority from time to time;

(k) that the firm is not maintaining, or is unlikely to be able to maintain, adequate capital resources or other financial resources having regard to the nature and volume of its business;

(l) that the firm has become unable or, in the opinion of the supervisory authority, is likely to become unable, to meet its obligations to its creditors;

(m) that the firm has suspended payments lawfully due;

(n) that the firm has contravened to a material degree a code of conduct or rules of conduct specified in or set out under section 37;

(o) that a director, manager or qualifying shareholder of a person who is an authorised investment business firm, or is deemed by section 26 or 63 to be such a firm, no longer satisfies the supervisory authority as to the matters specified in paragraphs (d) and (e) of section 10(5);

(p) that the firm has failed to comply with a condition, requirement or direction imposed under this Act and the supervisory authority is of the opinion that the stability and soundness of the firm is or has been materially affected by the failure;

(q) that the firm has so organised its business or corporate structure that it and, where appropriate, any related undertaking or associated undertaking, either collectively or individually, are no longer capable of being regulated under this Act to the satisfaction of the supervisory authority.

(3) The supervisory authority may not revoke the authorisation of an authorised investment business firm under subsection (2) unless it has served a notice on the firm of its intention to do so. The notice must set out the grounds on which it is proposed to revoke the authorisation.

(4) If an investment firm's authorisation is revoked, the firm and every person who was concerned in the management of the firm immediately before the revocation are jointly and severally responsible for ensuring the discharge of all undischarged contracts entered into by the firm before the authorisation was revoked, unless the Bank gives a direction in writing to the contrary.

(5) If the authorisation of an authorised investment business firm is revoked and the firm is not insolvent, the following provisions apply

(a) the firm continues to be subject to the obligations imposed by this Act and any codes of conduct or rules of conduct or client money requirements or any other conditions or requirements imposed by the supervisory authority under this Act until all the liabilities and other obligations of the firm have been discharged to the satisfaction of that authority;

(b) as soon as practicable after the revocation, the firm shall notify the supervisory authority and such other persons (if any) as that authority specifies of the measures being taken to discharge without delay the liabilities and other obligations of the firm.

(6) If the authorisation of an authorised investment business firm is revoked and the firm is not insolvent and—

(a) the firm has not notified the supervisory authority in accordance with paragraph (b) of subsection (5), or

(b) the firm has notified the supervisory authority in accordance with that paragraph but that authority is of the opinion that the measures being taken or proposed to be taken for the purposes of this section are unsatisfactory, or

(c) the firm has notified the supervisory authority in accordance with that paragraph but that authority is of the opinion that the firm has failed to take all reasonable steps to notify persons that that authority has specified in accordance with that paragraph,

that authority may, by direction given in writing, prohibit the firm from doing all or any of the following without the prior authorisation of that authority for such period, not exceeding 6 months, as is specified in the direction

(i) creating liabilities;

(ii) dealing with, or disposing of, assets or specified assets of the firm in any manner;

(iii) engaging in any kind of transaction or any specified transaction or class of transaction;

(iv) paying money to any person or to any specified person or class of persons.

(7) If the supervisory authority has given a direction under subsection (6), it may further direct the former authorised investment business firm to prepare and submit to that authority for its approval, within 2 months of the earlier direction, a scheme for the orderly discharge of the liabilities and other obligations of the firm.

(8) A former authorised investment business firm to which a direction has been given under this section shall comply with the direction. If the firm is a body (whether incorporate or unincorporated), each person who, immediately before the authorisation of the member firm was revoked, was concerned in the management of the firm, shall ensure that the former authorised investment business firm complies with the direction.

(9) If the authorisation of an investment business firm is revoked and the firm is insolvent, the following provisions apply

(a) the liquidator, official assignee or receiver of the firm has, in addition to any other obligations in respect of the winding-up, dissolution or bankruptcy, the same obligations as those that the firm would have if it were an authorised investment business firm to which subsection (5) applies;

(b) the liquidator, official assignee or receiver are also subject to any conditions or requirements imposed under this Act as if the liquidator, official assignee or receiver were an authorised investment business firm; and

(c) despite paragraph (a) of this subsection, the supervisory authority may, by notice in writing given to the body, discharge the liquidator, receiver or official assignee from complying with the obligations imposed by paragraph (b) of subsection (5) and impose on the liquidator, receiver or official assignee such other obligations corresponding to those set out in that paragraph as that authority considers appropriate.

(10) Within 28 days after the authorisation of an authorised investment business firm is revoked under this section, the supervisory authority shall publish a notice of the revocation in Iris Oifigiúil and in at least one daily newspaper that circulates within the State.

(11) After the revocation of the authorisation of an authorised investment business firm, the firm shall cease to operate as such a firm.

(12) The supervisory authority shall not revoke an authorisation of an authorised investment business firm on the ground set out in subsection (2)(o), unless it has given the firm an opportunity to remove the director, manager or qualifying shareholder, or otherwise deal with the concerns of that authority as regards the probity or competence of the person concerned, within such period as that authority specifies.

(12A) A decision of the supervisory authority to revoke an authorisation under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(13) For the purposes of this section, an investment business firm is insolvent if—

(a) being a company, the company is being wound up, or

(b) being an unincorporated body of persons, the body is the subject of a dissolution order, or

(c) being a natural person, the person is adjudicated bankrupt.

(14) A person who fails to comply with subsection (8) or (11) commits an offence.”.

8.

Section 21

(a) Substitute the following subsections for subsections (5) and (6)

“(5) A direction given under this section takes effect on a date specified by the Bank.

(6) A direction given under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(6A) On hearing an appeal against such a direction under Part VIIA of the Central Bank Act 1942, the Irish Financial Services Appeals Tribunal may hear evidence from creditors.”.

(b) Insert the following subsection after subsection (9)

“(10) A person who, without reasonable excuse, fails to comply with a direction given to the person under this section commits an offence.”.

9.

Section 32

Substitute the following subsection for subsection (3)

“(3) A direction given by the supervisory authority under subsection (2) that an authorised investment business firm may not re-appoint a person to the office of auditor is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

10.

Section 45

Substitute the following section for section 45

“Appeals to Irish Financial Services Appeals Tribunal.

45.—A decision of a supervisory authority—

(a) refusing to approve an acquiring transaction in accordance with section 39, or

(b) approving such a transaction subject to conditions or requirements,

is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

11.

Section 57

Substitute the following subsection for subsections (4) and (5)

“(4) The imposition of a condition or requirement, or the giving of any direction under this section, is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 at the instance of the approved professional body concerned.”.

12.

Section 58

Substitute the following subsection for subsection (3)

“(3) The imposition of a condition or requirement imposed under subsection (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

13.

Section 61

Substitute the following section for section 61

“Bank may revoke approval of professional body.

61.—(1) The Bank may revoke the approval of an approved professional body on a request made to it by or on behalf of the body. (2) The Bank may also revoke the approval of an approved professional body on any of the following grounds

61.—(1) The Bank may revoke the approval of an approved professional body on a request made to it by or on behalf of the body.

(2) The Bank may also revoke the approval of an approved professional body on any of the following grounds

(a) that the body has failed to operate as an approved professional body within 12 months of the date on which the approval was granted;

(b) that the body has failed to operate as an approved professional body for a period of more than 6 months;

(c) that the body is being wound up;

(d) that it is expedient to revoke the approval in the interest of the proper and orderly regulation of approved professional bodies or certified persons or in order to protect investors;

(e) that the body has been convicted on indictment of an offence under this Act or any other designated enactment or designated statutory instrument, or an offence involving fraud, dishonesty or breach of trust;

(f) that circumstances have materially changed since the granting of approval to the body such that, if an application for approval was made at the relevant time, a different decision would be taken in relation to the application for approval;

(g) that the approval was obtained by providing statements or information known by the applicant for approval to be false or misleading;

(h) that the body has failed to comply to a material degree with a requirement of this Act;

(i) that the body has failed to comply with a condition or requirement that was imposed when approval was granted or was imposed later;

(j) that the body has become unable or is, in the opinion of the Bank, likely to become unable to meet its obligations to its creditors;

(k) that the body has suspended payments lawfully due;

(l) that the Bank considers that any director or manager of the body who is primarily concerned with the regulation of certified persons no longer complies with the conditions of competence and probity required by section 56;

(m) that the body has so organised itself that it, and any related undertaking or associated undertaking, either collectively or individually, is no longer capable of being regulated to the satisfaction of the Bank under this Act.

(3) The Bank may not revoke the approval of a professional body unless it has served notice on the body of its proposal to revoke the approval. The notice must include a statement of the Bank's reasons for proposing to revoke the authorisation.

(4) If the approval of a professional body is revoked and the body is not a company that is being wound up, the following provisions apply

(a) the body and its members continue to have the obligations imposed by this Act until all of its liabilities and other obligations have been discharged to the satisfaction of the Bank;

(b) the body shall, as soon as possible after the revocation, notify the Bank, the members of the body and such other persons as the Bank specifies of the measures being taken to discharge without delay the liabilities and other obligations of the body.

(5) If—

(a) a former approved professional body has not notified the Bank in accordance with paragraph (b) of subsection (4), or

(b) a former approved professional body has notified the Bank in accordance with that paragraph and the Bank is of the opinion that the measures being taken or proposed to be taken for the purposes of that paragraph are not satisfactory, or

(c) a former approved professional body has notified the Bank in accordance with that paragraph but the Bank is of the opinion that the body has failed to take all reasonable steps to notify persons specified by the Bank under that paragraph,

the Bank may, by direction given in writing, prohibit the body from doing all or any of the following without the prior authorisation of the Bank for such period, not exceeding six months, as is specified in the notice

(d) creating liabilities;

(e) dealing with, or disposing of, assets or specified assets of the body, or of members of the body, in any manner;

(f) engaging in any kind of transaction, or in any specified transaction or class of transactions;

(g) making payments to any person.

(6) If the Bank has given a direction under subsection (5), the Bank may further direct the former approved professional body to prepare and submit to the Bank for its approval, within 2 months of the earlier direction, a scheme for the orderly discharge of the liabilities and other obligations of the body.

(7) A former approved professional body shall comply with a direction given to it under this section. Each person who, immediately before the approval of the body was revoked, was concerned in the management of the body, shall ensure that the body complies with the direction.

(8) If the approval of an approved professional body is revoked and the body is a company that is being wound up, the following provisions apply

(a) the liquidator of the body has, in addition to the liquidator's obligations in respect of the winding-up, the same obligations as the body would have had if it were a former approved professional body to which subsection (4) applies;

(b) despite paragraph (a) of this subsection, the Bank may, by notice in writing given to the body, discharge the liquidator from complying with the obligations imposed by paragraph (b) of subsection (4) and impose on the liquidator such other obligations corresponding to those set out in that paragraph as the Bank considers appropriate.

(9) Nothing in subsection (8) affects any obligation under this Act of any of the members of the former approved professional body concerned.

(10) Within 28 days after revoking the approval of a professional body under this section, the Bank shall publish a notice of the revocation in Iris Oifigiúil and in at least one daily newspaper that circulates within the State.

(11) A professional body whose approval is revoked under this section shall cease to operate as an approved professional body from the date on which it is notified of the revocation.

(12) The revocation of an approval by the Bank and the giving of a direction under this section are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942.

(13) The Bank may not exercise its power under subsection (2)(l) in respect of an approved professional body unless it has given the body an opportunity to remove the director or manager from office or otherwise deal with the concerns of the Bank in relation to the probity or competence of the person within such period as the Bank specifies.

(14) A person who fails to comply with subsection (7) or (11) commits an offence.”.

14.

First Schedule

Substitute the following Schedule for the First Schedule

“FIRST SCHEDULE Section 21.

Supplementary Provisions in Relation to a Direction by Supervisory Authority under Section 21 of this Act

Interpretation: First Schedule.

1. In this Schedule—

‘direction’ means a direction given by a supervisory authority under section 21 of this Act;

‘investment business firm’ includes—

(a) a proposed investment business firm, and

(b) an authorised investment business firm, and

(c) a former authorised investment business firm, and

(d) a person who the supervisory authority has reasonable grounds to believe is acting as an investment business firm, and

(e) an associated undertaking or related undertaking, and

(f) directors and those responsible for managing an investment business firm.

Supervisory authority may revoke direction.

2. A supervisory authority may revoke a direction unless the Irish Financial Services Appeals Tribunal has made an order in respect of the direction on the hearing of an appeal against the direction under Part VIIA of the Central Bank Act 1942.

Effect of direction confirmed by Irish Financial Services Appeals Tribunal on appeal.

3. A direction confirmed by the Irish Financial Services Appeals Tribunal on the hearing of an appeal against the direction under Part VIIA of the Central Bank Act 1942 terminates—

(a) at the end of the period of operation specified by that Tribunal, or

(b) on that Tribunal making an order for quashing the direction, or

(c) on the making of—

(i) if the investment business firm is a company, a winding-up order in respect of the investment business firm, or

(ii) if the firm is an unincorporated body, a dissolution order in respect of the firm, or

(iii) if the firm is a sole trader, an adjudication of bankruptcy in respect of the trader,

(d) on the making by that Tribunal of an order for termination where it considers on the hearing of an appeal against the direction under Part VIIA of the Central Bank Act 1942 that the circumstances that gave rise to the direction have ceased to exist and that it would be unjust and inequitable not to make the order,

whichever first occurs.

Supervisory authority may require investment business firm to prepare scheme for termination of its business.

4. If a supervisory authority considers that the investment business firm to which the direction was given is able to meet its obligations to its creditors, investors or clients but the circumstances that gave rise to the direction are unlikely to be rectified, it may, by notice in writing, require the firm— (a) to prepare, in consultation with the authority, a scheme for the orderly termination of its business and the discharge of its liabilities to its creditors, investors and clients under the supervision of the supervisory authority, and

4. If a supervisory authority considers that the investment business firm to which the direction was given is able to meet its obligations to its creditors, investors or clients but the circumstances that gave rise to the direction are unlikely to be rectified, it may, by notice in writing, require the firm—

(a) to prepare, in consultation with the authority, a scheme for the orderly termination of its business and the discharge of its liabilities to its creditors, investors and clients under the supervision of the supervisory authority, and

(b) to submit the scheme to the authority for its approval within 2 months after the giving of the notice.

Investment business firm may appeal against decision of supervisory authority.

5. A requirement made under paragraph 4 is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

Consequences of failing to comply with direction of supervisory authority.

6. (1) If the investment business firm—

(a) fails to comply with a requirement made by the supervisory authority under paragraph 4, or

(b) fails to comply with the terms of a scheme prepared and submitted by the firm and approved by the authority,

the supervisory authority may apply to the Court for an order under subparagraph (2).

(2) On the hearing of an application made under subparagraph (1), the Court may make such of the following orders as is appropriate

(a) if the investment business firm is a company, an order for the winding-up of the company on the grounds that it is just and equitable that the company should be wound up;

(b) if the investment business firm is an unincorporated body, an order for the dissolution of the firm on the grounds that it is just and equitable that the firm should be dissolved;

(c) if the investment business firm is a sole trader, an order that proceedings in bankruptcy be commenced, on the grounds that it is just and equitable that the trader should cease trading.

Supervisory authority may revoke or amend direction.

7. The supervisory authority may at any time revoke or amend a requirement made by it under paragraph 4.

Obligations of investment business firm when given a direction under this Schedule.

8. (1) On being given a direction—

(a) the investment business firm concerned shall take all necessary steps to ensure that its assets, or its client or investor assets wherever held, are not depleted without the prior authorisation of the supervisory authority, and

(b) the supervisory authority may direct—

(i) a credit institution or any institution exempted under section 7 of the Central Bank Act 1971, or

(ii) any other financial institution that holds an account of any description of the firm (including holdings of investment instruments of the firm to which the direction has been given),

to cease making payments from, or entering into other transactions in respect of, the account without the prior authorisation of that authority.

(2) A direction given under subparagraph (1)(b) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(3) An institution that, without reasonable excuse, fails to comply with a direction given under subparagraph (1)(b) commits an offence.”.

PART 6 Amendment of Consumer Credit Act 1995

PART 6

Amendment of Consumer Credit Act 1995

Item

Provision affected

Amendment

1.

Section 93

Substitute the following subsections for subsections (13) to (19)

“(13) If, having considered any representations that may have been made under subsection (12), the Bank decides to refuse to grant a licence, it shall, by notice in writing, inform the applicant of the decision. The notice must specify the grounds for the decision.

(14) If, having considered any representations that may have been made under subsection (12), the Bank decides to suspend or revoke a moneylender's licence, or to vary any term or condition of such a licence, it shall notify the decision to the holder of the licence, together with the grounds for the decision.

(15) The Bank shall deliver a notice referred to in subsection (13) or (14) personally or send it by prepaid registered post to the business address of the applicant for an authorisation or the holder of the authorisation concerned, as the case requires.

(16) The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942

(a) a decision to refuse to grant a moneylender's licence;

(b) a decision suspending or revoking such a licence;

(c) a decision varying any term or condition of such a licence.

(17) If a notice under this section relates to a decision of the Bank—

(a) suspending or revoking a moneylender's licence, or

(b) varying the terms or conditions of such a licence,

the decision takes effect at the end of the period allowed for appealing against the decision under Part VIIA of the Central Bank Act 1942 unless an appeal against the decision is lodged under that Part within that period.

(18) If an appeal is lodged under Part VIIA of the Central Bank Act 1942 by a holder of a moneylender's licence against a decision of the Bank—

(a) suspending or revoking such a licence, or

(b) varying the terms or conditions of such a licence,

the decision does not take effect unless it is confirmed by the Irish Financial Services Appeals Tribunal or the appeal is withdrawn.”.

2.

Section 116

Substitute the following subsections for subsections (13) to (20)

“(13) If, having considered any representations that may have been made under subsection (12), the Bank decides to refuse to grant an authorisation, it shall, by notice in writing, inform the applicant of the decision. The notice must specify the grounds for the decision.

(14) If, having considered any representations that may have been made under subsection (12), the Bank decides to suspend or revoke an authorisation, or to vary any term or condition of an authorisation, it shall notify the decision to the holder of the authorisation, together with the grounds for the decision.

(15) The Bank shall deliver a notice referred to in subsection (13) or (14) personally or send it by prepaid registered post to the business address of the applicant for an authorisation or the holder of the authorisation concerned, as the case requires.

(16) The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942

(a) a decision to refuse to grant an authorisation;

(b) a decision suspending or revoking an authorisation;

(c) a decision varying any term or condition of an authorisation.

(17) If a notice under this section relates to a decision of the Bank—

(a) suspending or revoking an authorisation, or

(b) varying the terms or conditions of an authorisation,

the decision takes effect at the end of the period allowed for appealing against the decision under Part VIIA of the Central Bank Act 1942 unless an appeal against the decision is lodged under that Part within that period.

(18) If an appeal is lodged under Part VIIA of the Central Bank Act 1942 by a holder of an authorisation against a decision of the Bank—

(a) suspending or revoking an authorisation, or

(b) varying the terms or conditions of an authorisation,

the decision does not take effect unless it is confirmed by the Irish Financial Services Appeals Tribunal or the appeal is withdrawn.

(19) In this section, ‘authorisation’ means a mortgage intermediaries authorisation.”.

PART 7 Amendment of Credit Union Act 1997

PART 7

Amendment of Credit Union Act 1997

Item

Provision inserted

Amendment

1.

Section 8

Substitute the following subsections for subsections (3) and (4)

“(3) If the Bank refuses to register as a credit union a society that has made an application for registration, it shall, by notice in writing, inform the society of the refusal. The notice must include a statement setting out the grounds for the refusal.

(4) A decision of the Bank refusing to register a society as a credit union is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

2.

Section 11

Substitute the following subsection for subsection (3)

“(3) A decision of the Bank declining to give its approval under subsection (2)(b) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

3.

Section 14

Substitute the following subsections for subsection (5)

“(5) If the Bank is not satisfied that an amendment of a credit union's rules sent to it under subsection (2) is not contrary to the provisions of this Act, it shall refuse to register the amendment, in which case it shall give the credit union a notice of its refusal to register the amendment. The notice must include a statement setting out the grounds for the refusal.

(5A) A decision of the Bank refusing to register an amendment of a credit union's rules under subsection (5) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

4.

Section 52

Substitute the following section for section 52

“Appeal against certain decisions of Bank.

52.—The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: (a) a decision of the Bank under section 49(3)(b) to refuse to grant approval;

52.—The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942

(a) a decision of the Bank under section 49(3)(b) to refuse to grant approval;

(b) a decision of the Bank under section 50(3)(a) to withdraw an approval granted under section 49;

(c) a decision of the Bank under section 50(3)(b) to vary any condition imposed on such an approval;

(d) a decision to impose any condition on such an approval (whether at the time the approval is granted or later by virtue of section 50 (3)(c)).”.

5.

Section 96

Substitute the following subsections for subsections (2) to (7)

“(2) The removal or suspension from office by the Bank of a director or member of the Supervisory Committee of a credit union under subsection (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(3) If a director or member of the Supervisory Committee of a credit union is removed by the Bank under this section or if, on the hearing of an appeal against the removal, the removal is confirmed by the Irish Financial Services Appeals Tribunal under Part VIIA of the Central Bank Act 1942, the vacancy caused by the removal shall be treated as a casual vacancy.

(4) A director or member of the Supervisory Committee of a credit union who is removed from office under this section is, for 5 years from the date when the removal takes effect, disqualified from holding office as an officer, auditor or voluntary assistant of a credit union.

(5) If a director or member of the Supervisory Committee of a credit union is suspended under this section, the remaining directors or members of the Supervisory Committee constitute the board of directors or the Supervisory Committee.

(6) No claim lies against the Bank, the Minister or the State for any loss of office arising directly or indirectly from any of the provisions of this section.”.

6.

Section 97

Substitute the following subsection for subsection (3)

“(3) The Bank shall not cancel the registration of a credit union otherwise than—

(a) at its own request, or

(b) under subsection (2),

unless it has given the credit union at least 2 months' notice in writing specifying the ground on which it is proposed to cancel that registration.”.

7.

Section 99

Substitute the following section for section 99

“Appeals against cancellation or suspension.

99.—(1) The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: (a) a decision of the Bank under section 97(3) or section 98(3) proposing to cancel or suspend the registration of a credit union;

99.—(1) The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942

(a) a decision of the Bank under section 97(3) or section 98(3) proposing to cancel or suspend the registration of a credit union;

(b) a decision of the Bank under section 98(1)(b) renewing the suspension of the registration of a credit union so that the suspension extends beyond 3 months from when the suspension began.

(2) A decision cancelling the registration of a credit union does not take effect until—

(a) the end of the period within which an appeal against the decision may be lodged under Part VIIA of the Central Bank Act 1942, or

(b) if an appeal is lodged against the decision within that period—

(i) the confirmation of the decision by the Irish Financial Services Appeals Tribunal on the hearing of the appeal, or

(ii) the withdrawal of the appeal,

whichever first occurs.”.

8.

Fourth Schedule

Substitute the following Schedule for the Fourth Schedule

“FOURTH SCHEDULE Section 88.

Supplementary Provisions in Relation to Regulatory Directions

When a regulatory direction terminates.

1. A regulatory direction terminates—

(a) at the end of the period of operation specified in the direction, or

(b) if an appeal is lodged against the direction under Part VIIA of the Central Bank Act 1942 and the period is varied by the Irish Financial Services Appeals Tribunal on the hearing of the appeal, at the end of the period specified in the direction as so varied, or

(c) on the making by the Court of a winding-up order in respect of the credit union,

whichever first occurs.

Bank may require credit union to prepare scheme for the orderly termination of its business.

2. (1) On forming the opinion that a credit union to which a regulatory direction was given is able to meet its obligations to its members and creditors but the circumstances that gave rise to the direction are unlikely to be rectified, the Bank may, by notice in writing given to the credit union, require the credit union—

(a) to prepare, in consultation with the Bank, a scheme for the orderly termination of its business and the discharge of its liabilities to its members and creditors under the supervision of the Bank; and

(b) to submit that scheme to the Bank for its approval.

(2) A credit union shall comply with a direction made to it under subparagraph (1) not later than 2 months after the requirement was notified to it under that subparagraph.

(3) A requirement made to a credit union under this paragraph is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

Consequences of failing to comply with requirement made under paragraph 2.

3. If a credit union fails to comply with a requirement made under paragraph 2 or fails to implement a scheme approved by the Bank, the Court may, on the application of the Bank, make an order for the winding-up of the credit union on the ground that it is just and equitable that it be wound up or such other order as it considers appropriate in the circumstances.

Court may revoke or amend order made under paragraph 3.

4. The Court may by order revoke or amend an order made by it under paragraph 3.

What action may be taken when regulatory direction is in force.

5. If a regulatory direction is in force in respect of a credit union, the following provisions apply

(a) the credit union shall take all necessary steps to ensure that its assets, wherever held, are depleted only in accordance with the approval of the Bank;

(b) the Court may, on the application of the Bank, make an order directing a bank, or any institution exempt under section 7 of the Central Bank Act 1971, that holds an account of the credit union to suspend the making of payments from the account for such period as the Court may consider appropriate in the circumstances;

(c) the credit union shall make reasonable arrangements for using its funds to meet applications (duly made in accordance with its rules) by members for repayment of money subscribed or deposited by them;

(d) if it appears to the Bank that the credit union has been applying an undue proportion of its funds in making loans, in preference to making such arrangements as are referred to in paragraph (c), the Bank may, after giving notice to the credit union and giving it an opportunity of making representations, apply to the Court for the winding-up of the credit union.”.

9.

Fifth Schedule

Repeal the Schedule.

PART 8 Amendment of Investor Compensation Act 1998

PART 8

Amendment of Investor Compensation Act 1998

Item

Provision affected

Amendment

1.

Section 25

Substitute the following subsection for subsection (7)

“(7) A refusal by the supervisory authority to approve a compensation scheme in accordance with this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

2.

Section 26

Substitute the following section for section 26

“Revocation of approval of compensation scheme.

26.—(1) The supervisory authority may, following consultation with the Company, revoke the approval of a compensation scheme if— (a) that authority considers that the operator of the compensation scheme is not complying or has not complied with conditions or requirements imposed by it under section 25, or

26.—(1) The supervisory authority may, following consultation with the Company, revoke the approval of a compensation scheme if—

(a) that authority considers that the operator of the compensation scheme is not complying or has not complied with conditions or requirements imposed by it under section 25, or

(b) conditions have materially changed since the granting of the approval such that, if an application for approval were made at the relevant time, a different decision would be taken in relation to the application for approval.

(2) A decision of the supervisory authority revoking the approval of a compensation scheme is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

3.

Section 28

Substitute the following section for section 28

“Direction under section 27 to be appealable.

28.—(1) A direction given under section 27 is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. (2) On hearing an appeal against a direction given under section 27, the Irish Financial Services Appeals Tribunal may—

28.—(1) A direction given under section 27 is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(2) On hearing an appeal against a direction given under section 27, the Irish Financial Services Appeals Tribunal may—

(a) hear evidence from creditors, and

(b) make such interim or interlocutory order, if any, as it thinks appropriate.

(3) While a direction made under section 27 is in force in relation to an investment firm, the following provisions apply

(a) if the firm is a body corporate, winding-up proceedings may be commenced, and a resolution for winding-up may be passed, in relation to the firm only with the prior sanction of the Court;

(b) if the firm is an unincorporated body, proceedings for an order of dissolution may be commenced only with the prior sanction of the Court;

(c) if the firm is a sole trader, bankruptcy proceedings may be commenced only with the prior sanction of the Court;

(d) a receiver may be appointed over any of the assets of the firm, and those assets may be attached, sequestered or otherwise distrained only with the prior sanction of the Court.

(4) The Court may hear the whole or any part of proceedings under this section otherwise than in public.

(5) A creditor who is affected by a direction under section 27(3) may apply to the Court to vary or set aside that direction where it affects the interests of the creditor to a material degree.

(6) If an investment firm that is an authorised investment firm for the purposes of the Act of 1995 fails to comply with a direction given under section 27, the supervisory authority may revoke the authorisation of the investment firm in accordance with that Act.

(7) If an investment firm that is an authorised member firm for the purposes of the Stock Exchange Act 1995 fails to comply with a direction given under section 27, the supervisory authority may revoke the authorisation of the firm in accordance with that Act.

(8) If an investment firm that is a credit institution fails to comply with a direction given under section 27, the Bank shall amend the authorisation of the credit institution under Council Directive No. 77/780/EEC of 12 December 1977 and Council Directive No. 89/646/EEC of 15 December 1989 so that the authorisation of the credit institution no longer permits the provision of investment services listed in the Annex to the Investment Services Directive and shall so inform the credit institution immediately.

(9) If an investment firm that is an insurance intermediary fails to comply with a direction given under section 27, the supervisory authority shall inform the Company and the investment firm that the firm has failed to comply with its obligations under this Act.

(10) If an investment firm referred to in subsection (6), (7) or (8) is subject to the Investor Compensation Directive, the supervisory authority shall give not less than 12 months notice to the firm of its intention to take action against the investment firm under the relevant subsection.”.

4.

Section 31

Substitute the following subsections for subsections (2) and (3)

“(2) A determination made by the supervisory authority in accordance with this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(3) Such a determination does not take effect until—

(a) the end of the period within which an appeal against the determination may be lodged under Part VIIA of the Central Bank Act 1942, or

(b) if an appeal is lodged against the determination within that period—

(i) the confirmation of the determination by the Irish Financial Services Appeals Tribunal on the hearing of the appeal, or

(ii) the withdrawal of the appeal,

whichever first occurs.”.

5.

Second Schedule

Substitute the following Schedule for the Second Schedule

“SECOND SCHEDULE Section 28.

Supplementary Provision in Relation to a Direction by a Supervisory Authority under Section 27

Interpretation: Second Schedule.

1. In this Schedule—

‘direction’ means a direction given under section 27;

‘investment firm’ includes every director or other person who has responsibility for managing an investment firm.

When a direction is to terminate.

2. A direction in force in relation to an investment firm terminates— (a) at the end of the period specified in the direction, or

2. A direction in force in relation to an investment firm terminates—

(a) at the end of the period specified in the direction, or

(b) if on the hearing of an appeal against the direction the Irish Financial Services Appeals Tribunal varies that period, at the end of that period as varied, or

(c) if the firm is a body corporate and a winding-up order is made in respect of the firm, or

(d) if the firm is an unincorporated body and a dissolution order is made in respect of the firm, or

(e) if the firm is a sole trader and the firm is adjudicated bankrupt, on the adjudication,

whichever first occurs.

What happens when direction is in force.

3. If a direction is in force in relation to an investment firm, the following provisions apply

(a) the firm shall take all necessary steps to ensure that its assets or client or investor assets, wherever held, are only depleted in accordance with the prior approval of the supervisory authority;

(b) that authority may direct a credit institution or any institution exempt under section 7 of the Central Bank Act 1971, or any other financial institution that holds an account in respect of the firm (including holdings of investment instruments of the firm) to suspend the making of payments from, or otherwise dealing with, the account without the prior approval of that authority.”.

PART 9 Amendment of Asset Covered Securities Act 2001

PART 9

Amendment of Asset Covered Securities Act 2001

Item

Provision affected

Amendment

1.

Section 26

Substitute the following section for section 26

“Certain decisions of Authority to be appealable to the Irish Financial Services Appeals Tribunal.

26.—The following decisions of the Authority are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942

(a) the rejection of an application made under section 13;

(b) the imposition of a condition when granting such an application;

(c) a variation of a condition of registration under section 16;

(d) the revocation of the registration of a designated credit institution under section 19;

(e) a direction given under section 20 or 21 in respect of a designated credit institution.”.

ISB Act 2004-07-05

Schedule 2 Central Bank and Financial Services Authority of Ireland Act 2004 Open official source

SCHEDULE 2 Amendment of European Communities Regulations Consequential on Insertion of Part IIIC of Central Bank Act 1942

Amendment of European Communities Regulations Consequential on Insertion of Part IIIC of Central Bank Act 1942

Section 10(3).

PART 1 Amendment of European Communities (Non-Life Insurance) Regulations 1976 (S.I. No. 115 of 1976)

PART 1

Amendment of European Communities (Non-Life Insurance) Regulations 1976 (S.I. No. 115 of 1976)

Item

Provision affected

Amendment

1.

Article 12

Substitute the following sub-articles for sub-articles (2) and (3)

“(2) A decision of the Bank refusing an application for an authorisation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(3) A failure of the Bank to deal with an application for an authorisation within 6 months after the date on which the Bank received the application is taken to be an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

2.

Article 23

Substitute the following sub-article for sub-article (6)

“(6) A decision of the Bank to revoke an authorisation or to suspend the business of an undertaking is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

PART 2 Amendment of European Communities (Life Assurance) Regulations 1984 (S.I. No. 57 of 1984)

PART 2

Amendment of European Communities (Life Assurance) Regulations 1984 (S.I. No. 57 of 1984)

Item

Provision affected

Amendment

1.

Article 13

Substitute the following sub-articles for sub-articles (2) and (3)

“(2) A decision of the Bank refusing an application for an authorisation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(3) A failure of the Bank to deal with an application for an authorisation within 6 months after the date on which the Bank received the application is taken to be an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

2.

Article 25

Substitute the following sub-article for sub-article (6)

“(6) A decision of the Bank to revoke an authorisation or to suspend the business of an undertaking is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

PART 3 Amendment of European Communities (Non-Life Insurance) (Amendment) (No. 2) Regulations 1991 (S.I. No. 142 of 1991)

Amendment of European Communities (Non-Life Insurance) (Amendment) (No. 2) Regulations 1991 (S.I. No. 142 of 1991)

Item

Provision affected

Amendment

1.

Article 14

Substitute the following paragraph for paragraph (d) of sub-article (3)

“(d) A decision of the Bank refusing an application by an undertaking for a certificate referred to in subparagraph (a) or (b) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

2.

Article 15

Substitute the following sub-article for sub-article (7)

“(7) A decision of the Bank refusing an application for an authorisation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

3.

Article 17

Substitute the following paragraph for paragraph (b) of sub-article (7)

“(b) A decision of the Bank adopting any measure specified in sub-articles (2) to (6) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

PART 4 Amendment of European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992)

PART 4

Amendment of European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992)

Item

Provision affected

Amendment

1.

Regulation 14

Substitute the following paragraph for paragraph (12)

“(12) A direction issued under paragraph (10) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

2.

Regulation 18

In paragraph (3), substitute “17A” for “17” wherever occurring.

3.

Regulation 22

Substitute the following Regulation

“Appeal against decision of Bank refusing to transmit certain information to be appealable.

22. A decision of the Bank under Regulation 21 refusing to transmit the relevant information to the competent authority of the Member State concerned is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

4.

Regulation 27

Substitute the following paragraph for paragraphs (5) to (9)

“(5) A direction issued to an institution under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

5.

Regulation 29

(a) Substitute the following paragraph for paragraph (3)

“(3) A direction issued to an institution under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

(b) Substitute the following paragraph for paragraphs (5) and (6)

“(5) If the Commission issues a direction, as provided for under paragraph 7 of Article 21 of the Directive, that the measures in question should be amended, suspended or terminated, the Bank shall comply with that direction without delay.”.

6.

Regulation 30

Delete “or seeks an order of the Court under Regulation 27”.

PART 5 Amendment of European Communities (Non-Life Insurance) Framework Regulations 1994 (S.I. No. 359 of 1994)

PART 5

Amendment of European Communities (Non-Life Insurance) Framework Regulations 1994 (S.I. No. 359 of 1994)

Item

Provision affected

Amendment

1.

Article 5

Repeal the Article.

2.

Article 16

Substitute the following Article for Article 16

“Failure to comply with technical reserves requirements.

16. (1) If an insurance undertaking whose head office is located in the State fails to comply with Article 13, the Bank may, after notifying the supervisory authorities of the Member States in which the risks underwritten by the undertaking exist, give the undertaking a direction in writing prohibiting the free disposal of the undertaking's assets.

(2) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the minimum amount required by Articles 3 and 4 of Part A of Annex II, the Bank shall give the undertaking a direction in writing requiring the undertaking to submit for the Bank's approval a plan for restoring the undertaking to a sound financial position.

(3) If, where sub-article (2) applies, it appears to the Bank that the financial position of an insurance undertaking is likely to deteriorate further, the Bank may give the undertaking a further direction in writing restricting or prohibiting the free disposal of the undertaking's assets.

(4) On giving such a direction, the Bank—

(a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and

(b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article.

(5) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the guarantee fund referred to in Part B of Annex II, the Bank—

(a) shall give to the undertaking a further direction in writing requiring the undertaking to submit for the Bank's approval a short-term finance scheme, and

(b) may include in the direction, or in another direction, a requirement restricting or prohibiting the undertaking from freely disposing of its assets.

(6) On giving a direction under subarticle (5), the Bank—

(a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and

(b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article.

(7) If the Bank has given a direction to an insurance undertaking in accordance with a provision of sub-articles (1) to (6), the Bank may give the undertaking such further directions as it thinks necessary to safeguard the interests of insured persons.

(8) If the supervisory authority of an insurance undertaking located in another Member State asks the Bank to take measures restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking located in the State, the Bank may give a direction in writing restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking that are located in the State.

(9) A direction or requirement given or imposed by the Bank under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

3.

Article 18

(a) Substitute the following paragraph for paragraph (c)

“(c) the Bank may give to the undertaking a direction in writing requiring the undertaking to take such further measures to safeguard the interests of persons insured by the insurance undertaking as are specified in the direction.”;

(b) Insert the following sub-article as sub-article (2) at the end of the Article

“(2) The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942

(a) a decision of the Bank revoking the authorisation of an insurance undertaking under Article 17;

(b) a restriction or direction imposed or given by the Bank under sub-article (1).”.

4.

Article 20

Substitute the following sub-articles for sub-articles (6) to (8)

“(6) If the Bank reasonably believes that the control exercised by the person or persons referred to in sub-article (1) is likely to operate against the prudent and sound management of an insurance undertaking, it may, for the purposes of putting an end to that situation, give to the undertaking—

(a) a direction in writing suspending the voting rights attached to the shares held by the shareholders or members in question, or

(b) such other direction as it thinks fit.

(7) The Bank may also give a similar direction to persons who fail to comply with the notification requirements referred to in sub-article (1). If a holding is acquired contrary to this Article, the Bank may give to the persons concerned a direction in writing suspending the corresponding voting rights or the nullity of votes cast.

(8) A direction given by the Bank under this Article is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

5.

Article 28

Substitute the following sub-article for sub-article (8)

“(8) A decision of the Bank refusing or failing to provide the relevant information is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

6.

Article 46

Repeal the Article.

PART 6 Amendment of European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994)

Amendment of European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994)

Item

Provision affected

Amendment

1.

Article 5

Repeal the Article.

2.

Article 36

Substitute the following Article for Article 36

“Failure to comply with technical reserves requirements (including mathematical reserves).

36. (1) If an insurance undertaking whose head office is located in the State fails to comply with Article 12, the Bank may, after notifying the supervisory authorities of the Member States in which the commitments underwritten by the undertaking exist, give the undertaking a direction in writing prohibiting it from freely disposing of its assets.

(2) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the minimum amount required under sub-article 2 (ii) of Article 7, the Bank shall give the undertaking a direction in writing requiring the undertaking to submit to the Bank for its approval a plan for restoring the undertaking to a sound financial position.

(3) If, where sub-article (2) applies, it appears to the Bank that the financial position of the insurance undertaking will deteriorate further, the Bank may give the undertaking a further direction in writing restricting or prohibiting the undertaking from freely disposing of the undertaking's assets.

(4) On giving a direction under subarticle (3), the Bank—

(a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and

(b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article.

(5) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the guarantee fund referred to in Part B of Annex II, the Bank—

(a) shall give to the undertaking a further direction in writing requiring the undertaking to submit for the Bank's approval a short-term finance scheme, and

(b) may include in the direction, or in another direction, a requirement restricting or prohibiting the undertaking from freely disposing of its assets.

(6) On giving a direction under subarticle (5), the Bank—

(a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and

(b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article.

(7) If the Bank has given a direction to an insurance undertaking in accordance with a provision of sub-articles (1) to (6), the Bank may give the undertaking such further directions as it thinks necessary to safeguard the interests of insured persons.

(8) If the supervisory authority of an insurance undertaking located in another Member State asks the Bank to take measures restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking located in the State, the Bank may give a direction in writing restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking that are located in the State.

(9) A direction or requirement given or imposed by the Bank under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

3.

Article 38

Substitute the following Article for Article 38

“Provisions applying in the case of revocation.

38. (1) On revoking an authorisation under Article 37, the Bank shall—

(a) inform the supervisory authorities of the other Member States in which the undertaking carries on business, and

(b) after consulting those authorities, give to the undertaking a direction in writing restricting the free disposal by the undertaking of its assets in accordance with Articles 36(1), 36(3) and 36(4).

(2) The Bank may impose such further measures as it considers necessary to safeguard the interests of persons insured by the insurance undertaking.

(3) The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942

(a) a decision revoking the authorisation of an insurance undertaking under Article 37;

(b) a direction or measure given or imposed under this Article.”.

4.

Article 40

Substitute the following sub-articles for sub-articles (6) to (8)

“(6) If the Bank reasonably believes that the control exercised by the person or persons referred to in sub-article (1) is likely to operate against the prudent and sound management of an insurance undertaking, it may, for the purposes of putting an end to that situation, give to the undertaking—

(a) a direction in writing suspending the voting rights attached to the shares held by the shareholders or members in question, or

(b) such other direction as it thinks fit.

(7) The Bank may also give a similar direction to persons who fail to comply with the notification requirements referred to in sub-article (1). If a holding is acquired contrary to this Article, the Bank may give to the persons concerned a direction in writing suspending the corresponding voting rights or the nullity of votes cast.

(8) A direction given by the Bank under this Article is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

5.

Article 46

Substitute the following sub-article for sub-article (7)

“(7) A decision of the Bank refusing or failing to provide relevant information is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

6.

Article 62

Repeal the Article.

PART 7 Amendment of Supervision of Credit Institutions, Stock Exchange Member Firms and Investment Business Firms Regulations 1996 (S.I. No. 267 of 1996)

PART 7

Amendment of Supervision of Credit Institutions, Stock Exchange Member Firms and Investment Business Firms Regulations 1996 (S.I. No. 267 of 1996)

Item

Provision affected

Amendment

1.

Regulation 10

Substitute the following Regulation

“10. A decision of a supervisory authority under these regulations is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

PART 8 Amendment of European Communities (Electronic Money) Regulations 2002 (S.I. No. 221 of 2002)

Amendment of European Communities (Electronic Money) Regulations 2002 (S.I. No. 221 of 2002)

Item

Provision affected

Amendment

1.

Regulation 15

Substitute the following paragraph for paragraphs (7) to (11)

“(7) A decision of the Bank refusing to transmit the relevant information to the competent authority of the Member State concerned is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

2.

Regulation 28

Substitute the following paragraphs for paragraphs (5) to (11)

“(5) The Bank may at any time, by notice given in writing to the electronic money institution concerned, vary or revoke a direction given under Regulation 27(3).

(6) The Bank may, by giving a further direction in writing, extend the period of operation of a direction given under Regulation 27(3), for such further period, not exceeding 12 months from the date the direction started to have effect, as the Bank considers appropriate.

(7) A direction given under Regulation 27(3) ceases to have effect—

(a) at the end of the period specified in the direction or, if the period of its operation has been extended, at the end of that extended period, or

(b) on the making of a winding-up order in respect of the institution concerned,

whichever first occurs.

(8) If a direction under Regulation 27(3) is in force—

(a) winding-up or bankruptcy proceedings may be commenced in relation to the electronic money institution concerned, and

(b) a receiver over the property of that institution may be appointed, and

(c) the property of that institution may be attached, sequestered or otherwise distrained,

only with the prior approval of the Court.

(9) If it appears to the Bank that an electronic money institution in respect of which the direction was given under Regulation 27(3) is able to meet its obligations to its creditors but the circumstances that gave rise to the direction are unlikely to be rectified, it may give the institution a further direction requiring the institution—

(a) to prepare, in consultation with the Bank, a scheme for the orderly termination of its business relating to issuing e-money, and the discharge of its liabilities in relation to its issued e-money, under the supervision of the Bank, and

(b) to submit the scheme to the Bank for its approval within 2 months after preparing the scheme.

(10) If it appears to the Bank that an electronic money institution to which a direction has been given under paragraph (9)—

(a) has failed, or is failing, to comply with the direction, or

(b) has failed, or is failing, to comply with the terms of the scheme as approved by the Bank,

the Court may, on the application of the Bank, make such order as it considers appropriate, including—

(i) an order of committal, or

(ii) if the institution is a body corporate, a winding-up order on the grounds that it is just and equitable that the institution should be wound up, or

(iii) if the institution is a partnership, an order dissolving the partnership on the grounds that it is just and equitable that the institution should be dissolved.

(11) A direction given by the Bank under Regulation 27(3) or under this Regulation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

3.

Regulation 40

Substitute the following paragraph for paragraphs (5) to (8)

“(5) A direction issued under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”.

4.

Regulation 41

Substitute the following Regulation

“Direction by Bank to cease business.

41. (1) This Regulation applies to an electronic money institution authorised in another Member State.

(2) If—

(a) the Bank considers that it is necessary, in the interests of the proper and orderly regulation of financial markets in the State, or

(b) the electronic institution concerned has had its authorisation withdrawn, revoked or suspended, in whole or in part, in accordance with the law of the relevant Member State,

the Bank may dispense with the requirements of Regulation 40 in relation to the notification of that institution.

(3) If the Bank dispenses with the requirements of Regulation 40 in relation to the notification of an electronic money institution, the competent authority of the other Member State and the Bank may direct that institution to take such measures as the Bank may specify, including a direction—

(a) that the institution cease to provide e-money services in the State, and

(b) where the institution has a branch in the State, that the business of the branch be wound up or dissolved by the Court in an orderly manner.

(4) A direction given by the Bank under paragraph (3) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

(5) As soon as practicable after taking measures under paragraph (3), the Bank shall inform the European Commission and the competent authority of the relevant Member State of those measures.

(6) The Bank shall comply with any direction given by the European Commission in accordance with paragraph 7 of Article 22 of the Codified Directive to amend, suspend or terminate measures that the Bank has directed an electronic money institution to take under paragraph (3).”.

PART 9 Amendment of European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003 (S.I. No. 211 of 2003)

PART 9

Amendment of European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003 (S.I. No. 211 of 2003)

Item

Provision affected

Amendment

1.

Regulation 14

Substitute the following Regulation

“Refusal of authorisation and right of appeal.

14. (1) As soon as practicable after deciding to refuse an application for authorisation the Bank shall, by notice in writing, inform the company of its decision. A decision refusing the application must include a statement of the grounds on which it is based.

(2) If the application complies with Regulation 13, the Bank shall in any case comply with paragraph (1) within 6 months after the date on which the Bank received the application.”.

2.

Regulation 104

Substitute the following Regulation

“Directions by the Bank.

104. (1) If the Bank is of the opinion that—

(a) it is in the public interest to do so, or

(b) it is in the interests of the orderly and proper regulation of UCITS, or

(c) any of the requirements for authorising a UCITS are no longer satisfied, or

(d) the management company, investment company or trustee of such a UCITS—

(i) has become or is likely to become unable to meet its obligations to its creditors, or

(ii) has contravened any provision of these Regulations, or has failed to comply with any condition or requirement imposed under these Regulations by the Bank, or in purported compliance with any such provision, has provided the Bank with information that it knows to be false, inaccurate or misleading, or

(iii) is not maintaining adequate capital resources having regard to the volume and nature of its business, or

(iv) no longer complies with the capital or other financial requirements imposed by the Bank from time to time,

the Bank may give a direction in writing to the management company, investment company or trustee requiring it to take such steps (including the winding-up of the UCITS or the suspension of the issue or redemption of units of the UCITS, or both) from a date specified in that direction until such further date as is specified in that direction, or in another direction, as the Bank considers necessary in the interests of the orderly and proper regulation of UCITS or for the protection of unit-holders or creditors of the UCITS.

(2) If a direction under paragraph (1) affects a particular UCITS, the UCITS shall immediately notify its unit-holders of the terms of the direction.

(3) The revocation of the authorisation of a UCITS does not affect the operation of a direction given under paragraph (1) that is then in force. A direction may be given under that paragraph in relation to a UCITS whose authorisation has been revoked so long as a direction under that paragraph was already in force at the time of revocation.

(4) For the purposes of paragraph (1), the Bank may take into account any matter relating to the UCITS, management company, investment company, trustee or any person employed by or associated with the management company, investment company or trustee in connection with the UCITS.

(5) The Bank may revoke a direction under paragraph (1) unless an order under paragraph (10) has been made in respect of that direction.

(6) A direction of the Bank given under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 at the instance of—

(a) a management company, investment company or trustee to which the direction relates, or

(b) any creditor who is affected by the direction.

(7) A direction given under paragraph (1) ceases to have effect—

(a) when the period specified in the direction expires, or

(b) if, on the hearing of an appeal against the direction by the Irish Financial Services Appeals Tribunal, the Tribunal confirms the direction but varies the period, when that period expires, or

(c) on the making of a winding-up order in respect of the UCITS, or with the sanction of the court, the dissolution of the UCITS,

whichever occurs first.

(8) If the Bank is of the opinion that, even if the management company, investment company or trustee concerned appears to be able to meet its obligations to its creditors, the circumstances giving rise to the direction are likely to continue to exist after the giving of direction, it may give a further direction in writing to the UCITS requiring it—

(a) to prepare, in consultation with the Bank, a scheme for the orderly termination of its business and the discharge of its liabilities, and

(b) to submit the scheme to the Bank for its approval within 3 months after its preparation.

(9) If a management company, investment company or trustee of a UCITS—

(a) has failed, or is failing, to comply with a direction given by the Bank under paragraph (8), or

(b) has failed, or is failing, to comply with a scheme approved by the Bank under that paragraph,

the court may, on the application of the Bank, make such order as it considers appropriate (including an order of committal or a winding-up order on the grounds that it is just and equitable that the management company, investment company or trustee be wound up).

(10) The court may, on application under paragraph (9) hear evidence from creditors, and the court may make such interim or interlocutory order, as it considers appropriate.

(11) While a direction under paragraph (1) is in force—

(a) the UCITS to which it relates may not be dissolved, and

(b) the court may, by order, restrain any disposal of the assets of the UCITS on the ground that such a disposal could have the effect of perpetrating a fraud on the UCITS, its creditors or unit-holders.”.

3.

Regulation 105

Substitute the following Regulation

“Certain decisions of Bank to be appealable.

105. The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942

(a) a decision refusing an application for authorisation under Regulation 14(1);

(b) a failure to decide an application within the period prescribed by Regulation 14(2);

(c) a decision revoking or refusing an application to revoke an authorisation;

(d) a decision replacing or proposing to replace a management company or trustee under Regulation 101.”.

ISB Act 2004-07-05

Schedule 3 Central Bank and Financial Services Authority of Ireland Act 2004 Open official source

SCHEDULE 3 Miscellaneous Amendments to other Acts Administered by the Bank

SCHEDULE 3

Miscellaneous Amendments to other Acts Administered by the Bank

Section 33.

PART 1 Amendment of Insurance Act 1936

PART 1

Amendment of Insurance Act 1936

Item

Provision affected

Amendment

1.

Section 3

(a) Insert “(1)” before “In this Act”;

(b) Insert the following subsection at the end of the section

“(2) A financial contract within the meaning of the Netting of Financial Contracts Act 1995 is not, and is taken never to have been, a contract of insurance for the purposes of—

(a) the Insurance Acts 1909-2002, or

(b) regulations in force under those Acts, or

(c) regulations relating to insurance that are in force under the European Communities Act 1972.

However, this subsection does not have effect if the financial contract provides for any benefit that may accrue to a party to the contract to be conditional on the occurrence of a loss or detriment to which the party is required to be exposed under the contract.”.

2.

Section 51 (as amended by item 17 of Part 2 of Schedule 1 to the Central Bank and Financial Services Authority of Ireland Act 2003)

In subsection (2), substitute “may not pay or undertake” for “may pay, or undertake”.

PART 2 Amendment of Companies Act 1963

Amendment of Companies Act 1963

Item

Provision affected

Amendment

1.

Section 103

In subsection (1)(b), insert the following subparagraph after subparagraph (iii)

“(iiia) if the charge is a floating one, granted by a company to the Central Bank and Financial Services Authority of Ireland for the purposes either of providing or securing collateral, particulars of any provision of the charge that has the effect of prohibiting or restricting the company from issuing further securities that rank equally with that charge or modifying the ranking of that charge in relation to securities previously issued by the company;”.

PART 3 Amendment of Insurance Act 1964

PART 3

Amendment of Insurance Act 1964

Item

Provision affected

Amendment

1.

Section 3 (as amended by section 31 of the Insurance Act 1989)

In subsection (1B), substitute “in respect of a risk” for “in the State in respect of a risk situated in the State”.

2.

Section 6 (as amended by section 10 of the Insurance (No. 2) Act 1983 and by section 31 of the Insurance Act 1989)

In subsection (2)(d), substitute the following definition for the definition of “aggregate income”: “ ‘aggregate income’, in relation to an insurer in respect of any period, means the gross amount of premiums paid or payable to the insurer in respect of policies issued by the insurer during that period;”.

In subsection (2)(d), substitute the following definition for the definition of “aggregate income”

“ ‘aggregate income’, in relation to an insurer in respect of any period, means the gross amount of premiums paid or payable to the insurer in respect of policies issued by the insurer during that period;”.

PART 4 Amendment of Central Bank Act 1971

Amendment of Central Bank Act 1971

Item

Provision affected

Amendment

1.

Section 2 (as amended by section 70(c) of the Central Bank Act 1997 and item 1 of Part 6 of Schedule 1 to the Central Bank and Financial Services Authority of Ireland Act 2003)

(a) In subsection (1), insert the following definitions after the definition of “the Act of 1942”: “ ‘Amsterdam Treaty’ means the treaty signed in Amsterdam on 2 October 1997 amending the Treaty on European Union; ‘associated company’, in relation to the holder of a licence, means a company in respect of which— (a) not less than 20 per cent of the nominal value of the company's equity share capital is held by the company, or (b) not less than 20 per cent of shares carrying voting rights (other than voting rights that arise only in particular circumstances) are so held;”;

(a) In subsection (1), insert the following definitions after the definition of “the Act of 1942”

“ ‘Amsterdam Treaty’ means the treaty signed in Amsterdam on 2 October 1997 amending the Treaty on European Union;

‘associated company’, in relation to the holder of a licence, means a company in respect of which—

(a) not less than 20 per cent of the nominal value of the company's equity share capital is held by the company, or

(b) not less than 20 per cent of shares carrying voting rights (other than voting rights that arise only in particular circumstances) are so held;”;

(b) In subsection (1), substitute the following definition for the definition of “banking business”

“ ‘banking business’, in relation to a person, means any business that consists of or includes—

(a) receiving money on the person's own account from members of the public either on deposit or as repayable funds (whether or not the issue of securities or any other form of financial obligation is involved), and

(b) any other business of a kind normally carried on by a bank (which may include the granting of credits on own account), and

(c) any other business of a kind prescribed under subsection (2) for the purpose of this paragraph,

but does not include such a business in so far as the business consists of or includes—

(i) receiving money on deposit by a trader either from employees of the trader in relation to the trader's business, or from customers of the trader in the normal course of the trader's business, or

(ii) receiving money in respect of leasing or selling goods under a hire-purchase agreement, a leasing agreement or credit-sale agreement, or

(iii) receiving money as security or collateral or as a bond for the repayment of a debt or the performance of a contract related to goods or services, or

(iv) receiving money accepted by way of advance or part payment under a contract for the sale, hire or other provision of goods or services, and repayable only in the event that the goods or services are not in fact sold, hired or otherwise provided, or

(v) receiving money solely as a premium in respect of the issue or renewal of a life assurance policy issued by a holder of an authorisation under the European Communities (Life Assurance) Regulations 1984 (S.I. No. 57 of 1984), or

(vi) receiving money accepted as a contribution within the meaning of the Pensions Acts, or

(vii) receiving money where it can be shown that—

(I) no part of the business activities of the person receiving the money or of any other person is financed wholly or substantially out of those funds, and

(II) those funds are, in the normal course of business, accepted only on a casual or incidental basis, or

(viii) receiving money under financial contracts (within the meaning of the Netting of Financial Contracts Act 1995) (which may include the acceptance of collateral).”;

(c) In subsection (1), insert the following definitions after the definition of “the Court”

“ ‘ESCB Statute’ means the Statute of the European System of Central Banks and of the European Central Bank as set out in Protocol (No. 3) (annexed by the Treaty on European Union done at Maastricht on 7 February 1992) to the Rome Treaty;

‘functions’, in relation to the Bank, means the functions and duties imposed on the Bank by or under an enactment;”;

(d) In subsection (1), insert the following definition after the definition of “holder”

“ ‘holding company’ has the meaning given by section 2 of the Central Bank Act 1942;”;

(e) In subsection (1), insert the following definition after the definition of “investment trust company”

“ ‘legal practitioner’ means a barrister or solicitor;”;

(f) In subsection (1), insert the following definition after the definition of “insurance undertaking”

“ ‘Maastricht Treaty’ means the Treaty on European Union done at Maastricht on 7 February 1992;”;

(g) In subsection (1), insert the following definitions after the definition of “the Minister”

“ ‘Pensions Acts’ means the Pensions Act 1990 as amended from time to time, and includes all Acts that are to be construed together with that Act as one Act;

‘record’ means any record of information, however compiled, recorded or stored, and includes—

(a) any book, a register and any other document containing information, and

(b) any disc, tape or other article from which information is capable of being produced in any form capable of being reproduced visually or aurally;

‘related body’, in relation to the holder of a licence, means—

(a) a subsidiary company of that holder, or

(b) if that holder is itself a subsidiary—

(i) its holding company, or

(ii) any other subsidiary of its holding company,

or

(c) an associated company of that holder, or

(d) a partnership in which that holder has an interest, and whose business is or, at any relevant time, was in the Bank's opinion materially relevant to an inspection being carried out, or proposed to be carried out, under section 17A;

‘Rome Treaty’ means the Treaty establishing the European Community done at Rome on 25 March 1957, as amended by the Maastricht Treaty, the Amsterdam Treaty and any other later Treaty on European Union;”;

(h) In subsection (1), insert the following definition after the definition of “securities”

“ ‘subsidiary company’ has the meaning given by section 2 of the Central Bank Act 1942;”;

(i) Substitute the following subsection for subsection (2)

“(2) On being satisfied that it would be consistent with the proper and orderly regulation of banking to do so, the Minister may, after consulting the Bank, make an order—

(a) prescribing a category of business for the purpose of paragraph (c) of the definition of ‘banking business’ in subsection (1), or

(b) amending that definition by—

(i) adding a specified category of business to the exclusions specified in that definition, or

(ii) removing a specified category of business from those exclusions, or

(iii) substituting for a category of business specified in those exclusions another such category.”.

2.

Section 7 (as amended by section 30 of the Central Bank Act 1989)

(a) Substitute the following subsection for subsection (4): “(4) Subsection (1) does not apply in relation to— (a) the central bank of another member state of the European Communities that is a member of the European Central Bank, or (b) the Post Office Savings Bank, or

(a) Substitute the following subsection for subsection (4)

“(4) Subsection (1) does not apply in relation to—

(a) the central bank of another member state of the European Communities that is a member of the European Central Bank, or

(b) the Post Office Savings Bank, or

(c) a trustee savings bank certified under the Trustee Savings Banks Acts 1863 to 1979, or

(d) a building society, an industrial and provident society, a friendly society or a credit union, or

(e) a manager, trustee or custodian of a unit trust or a collective investment undertaking or an entity that provides services to such an undertaking, or

(f) another member state of the European Communities, a regional or local authority of such a state, or a public international organisation of which one or more member states of the European Communities are members.

(5) The Minister may, if satisfied that it would be in the interest of the proper and orderly regulation of banking or of any other financial market to do so, make an order amending subsection (4)—

(a) by adding to the subsection any specified body or any specified class of persons, or

(b) by omitting from the subsection any specified body or any specified class of persons,

but only after consultation with the Bank and with such other Minister of Government or other persons as the Minister considers appropriate to so consult.”.

(b) Insert the following subsection after subsection (5) (as inserted by paragraph (a))

“(6) Subsection (1) does not apply to a person who acts on behalf of—

(a) the Bank, or

(b) the holder of a licence, or

(c) a body or person referred to in subsection (4), or

(d) a credit institution or financial institution that is permitted by the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992) to carry on business within the State, but only so long as the institution complies with all conditions imposed on such an institution by those Regulations and by or under an Act.”.

3.

Section 8 (as amended by section 31 of the Central Bank Act 1989 and section 70(d) of the Central Bank Act 1997)

Substitute the following subsections for subsection (2): “(2) The Bank may exempt a specified person, or the members of a specified class of persons, from being required to hold a licence where the requirement would arise only from the creation of securities or other obligations to which the definition of ‘banking business’ relates, but only if the Bank is satisfied that the granting of the exemption would be consistent with the proper and orderly regulation of banking.

Substitute the following subsections for subsection (2)

“(2) The Bank may exempt a specified person, or the members of a specified class of persons, from being required to hold a licence where the requirement would arise only from the creation of securities or other obligations to which the definition of ‘banking business’ relates, but only if the Bank is satisfied that the granting of the exemption would be consistent with the proper and orderly regulation of banking.

(2A) An exemption granted under this section is subject to such conditions as the Bank thinks fit to impose.

(2B) The Bank shall revoke an exemption granted under this section if satisfied—

(a) that the circumstances relevant to the exemption have changed and are now such that the exemption would no longer be granted, or

(b) that a condition of the exemption is not being, or has not been, substantially complied with.

(2C) The Bank shall publish in Iris Oifigiúil a notice of every exemption and revocation under this section.”.

4.

Section 15

Substitute the following subsection for subsection (2)

“(2) If, on delivery of documents under section 352 of the Companies Act 1963, or under regulation 4 or 7 of the European Communities (Branch Disclosures) Regulations 1993 (S.I. No. 395 of 1993), it appears to the registrar of companies that the company to which those documents relate—

(a) would be holding itself out as carrying on business as a banker in the State, or

(b) would have as one of its objects in its memorandum of association the carrying on of banking business in the State,

the registrar shall give the Bank written notice of the matter.”.

5.

Section 17 (as substituted by item 2 of Part 6 of Schedule 1 to the Central Bank and Financial Services Authority of Ireland Act 2003)

Delete subsection (5).

6.

Section 17A (as substituted by item 2 of Part 6 of Schedule 1 to the Central Bank and Financial Services Authority of Ireland Act 2003)

In subsection (8), delete the definitions of “associated company”, “company”, “functions”, “holding company”, “legal practitioner”, “prescribed record”, “related body” and “subsidiary company”.

7.

Section 18 (as substituted by section 37 of the Central Bank Act 1989 and amended by section 8 of the Central Bank Act 1998)

Substitute the following section for section 18

“Holders of licences and others to provide Bank with required information and returns.

18.—(1) This section applies to the following persons: (a) a person who is the holder of a licence; (b) any person who carries on— (i) a business of an associated company or related body of the holder of a licence, or (ii) a business in respect of which the person is, because of section 7(4)(b), exempt from being required to hold a licence, or (iii) a business as an investment trust company, or (iv) a business as a moneybroker, or (v) a business as a financial intermediary, or (vi) a business of issuing, holding or otherwise participating in any market in financial instruments, including those to which Chapter VIII of Part II of the Central Bank Act 1989 applies.

18.—(1) This section applies to the following persons

(a) a person who is the holder of a licence;

(b) any person who carries on—

(i) a business of an associated company or related body of the holder of a licence, or

(ii) a business in respect of which the person is, because of section 7(4)(b), exempt from being required to hold a licence, or

(iii) a business as an investment trust company, or

(iv) a business as a moneybroker, or

(v) a business as a financial intermediary, or

(vi) a business of issuing, holding or otherwise participating in any market in financial instruments, including those to which Chapter VIII of Part II of the Central Bank Act 1989 applies.

(2) A person to whom this section applies shall provide the Bank, at such times, or within such periods, as the Bank specifies from time to time, with such information and returns concerning the relevant business carried on by the person as the Bank specifies from time to time.

(3) A person to whom this section applies shall, at such time or within such period as the Bank specifies, provide the Bank with such information or return (not being information or a return specified under subsection (2)) as it requests in writing concerning the relevant business carried on by the person.

(4) A reporting agent designated by the European Central Bank shall provide the Bank or the European Central Bank, at such times or within such periods as the Bank or the European Central Bank specifies from time to time, with such information and returns concerning the activities of the agent as the Bank or the European Central Bank specifies from time to time.

(5) A reporting agent designated by the European Central Bank shall, at such time or within such period as the Bank or European Central Bank specifies, provide the Bank or European Central Bank with such information or return (not being information or a return specified under subsection (4)) as the Bank or European Central Bank requests in writing concerning the activities of the agent.

(6) The Bank may specify information or a return for the purposes of this section only if it considers it necessary to have that information or return for the proper performance of the functions imposed, or the proper exercise of the powers conferred, on it by law.

(7) The European Central Bank may specify information or a return for the purposes of subsection (4) or (5) only if that Bank considers it necessary to have that information or return for the proper performance by that Bank of tasks and duties imposed, or the proper exercise of the powers conferred, on that Bank by or under the Rome Treaty or the ESCB Statute.

(8) A person shall not provide for the purpose of this section information or a return that the person knows to be false or misleading in a material respect.

(9) This section applies to the business of an associated company or a related body only in so far as the information and returns sought by the Bank are, in its opinion, materially relevant to the proper appraisal of the business of the holder of the licence concerned.

(10) In this section—

‘information and returns’ and ‘information or return’ include audited accounts and audited group accounts, and any other documents that are equivalent or correspond to audited accounts or audited group accounts;

‘moneybroker’ has the same meaning as it has in section 108 of the Central Bank Act 1989, for the purposes of Chapter IX of that Act;

‘relevant business’, in relation to a person to whom this section applies, means—

(a) in the case of a person who is the holder of a licence, the banking business to which the licence relates, or

(b) in the case of a person referred to in subsection (1)(b), the business carried on by the person.”.

8.

Section 27 (as substituted by section 70(e) of Central Bank Act 1997)

(a) Substitute the following subsection for subsection (2): “(2) Subsection (1) of this section does not apply to advertising for or otherwise soliciting deposits or other repayable funds from the public— (a) by the holder of a licence, the Bank, or a person to whom, because of subsection (4) of section 7 of this Act, subsection (1) of that section does not apply, or

(a) Substitute the following subsection for subsection (2)

“(2) Subsection (1) of this section does not apply to advertising for or otherwise soliciting deposits or other repayable funds from the public—

(a) by the holder of a licence, the Bank, or a person to whom, because of subsection (4) of section 7 of this Act, subsection (1) of that section does not apply, or

(b) by a person to whom, because of section 8(2) of this Act, section 7(1) of this Act does not apply, or

(c) by a person authorised to carry on business in the State by the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992, or

(d) by a person on behalf of a person referred to in paragraph (a), (b) or (c) of this subsection.”;

(b) In subsection (5), insert “or other repayable funds” after “deposits”.

PART 5 Amendment of Insurance (Miscellaneous Provisions) Act 1985

PART 5

Amendment of Insurance (Miscellaneous Provisions) Act 1985

Item

Provision affected

Amendment

1.

Section 1

Substitute the following definition for the definition of “the Minister”

“ ‘the Minister’ means the Minister for Finance.”.

2.

Sections 2 and 3

Repeal the sections.

3.

Section 4

After “attorney” insert “or proxy”, wherever occurring.

4.

Section 6

Delete “, after consultation with the Minister for Finance,”.

5.

Section 7

Delete “given after consultation with the Minister for Finance”.

6.

Section 8

Substitute the following subsection for subsection (1)

“(1) The memorandum and articles of association of the Company must be in a form, consistent with this Act, that is approved by the Minister.”.

7.

Section 9

In subsection (2), delete “, after consultation with the Minister for Finance,”.

8.

Section 10

(a) In subsection (1), delete “after consultation with the Minister for Finance”;

(b) in subsection (2), delete “after consultation with the Minister for Finance”;

(c) in subsection (3), delete “after consultation with the Minister for Finance”;

(d) in subsection (4), delete “, after consultation with the Minister for Finance,”.

9.

Section 14

(a) In subsection (1), delete “, with the consent of the Minister for Finance,”;

(b) in subsection (3), insert “, or the Minister for Enterprise, Trade and Employment,” after “Minister”;

(c) in subsection (4), delete “with the consent of the Minister for Finance”;

(d) in subsection (6), insert “, or the Minister for Enterprise, Trade and Employment,” after “Minister” wherever occurring;

(e) in subsection (7), delete “for Finance”;

(f) in subsection (8), insert “, or the Minister for Enterprise, Trade and Employment,” after “Minister”.

10.

Section 15

(a) In subsection (1), delete “to him by the Minister for Finance”;

(b) in subsection (2), delete “for Finance”.

11.

Section 17

Delete “, to such extent as may be sanctioned by the Minister for Finance,”.

PART 6 Amendment of Insurance Act 1989

PART 6

Amendment of Insurance Act 1989

Item

Provision affected

Amendment

1.

Section 2

Insert the following definition after the definition of “the Court”

“ ‘EEA country’ means a country that is a member of the European Economic Area;”.

2.

Section 11

Substitute the following subsection for subsection (2)

“(2) The Bank has a right to disclose any such return or document to the supervisory authority of another EEA country so long as the disclosure is not prohibited by law.”.

3.

Section 18

Substitute the following subsection for subsection (3)

“(3) If the head office of an undertaking is located in another EEA country, the Bank shall notify the supervisory authority of that country before issuing a direction under this section in respect of the undertaking.”.

4.

Section 20

Substitute the following section for section 20

“Qualifications, experience and fitness of directors, managers and authorised agents of insurers.

20.—(1) For the purposes of this section, a person holds a management position with an insurer if the person— (a) is a director of the insurer, or (b) holds a management position with the insurer that is specified by the Bank, or (c) is the authorised agent of the insurer in the State.

20.—(1) For the purposes of this section, a person holds a management position with an insurer if the person—

(a) is a director of the insurer, or

(b) holds a management position with the insurer that is specified by the Bank, or

(c) is the authorised agent of the insurer in the State.

(2) The Bank may, by notice in writing, require an insurer to submit such information as the Bank requires concerning—

(a) the qualifications and experience of persons who hold management positions with the insurer, and

(b) the fitness of those persons to hold those positions.

(3) On being satisfied on reasonable grounds that a person holding a management position with an insurer—

(a) does not have the appropriate qualifications or adequate experience, or

(b) is not otherwise fit to hold the position,

the Bank may direct that, while the person continues to hold the position, the insurer must take such of the measures specified in subsection (4) as the Bank notifies in writing to the insurer.

(4) The following measures are specified for the purposes of subsection (3)

(a) to refrain from taking on new business, or new business of a specified type or class;

(b) to limit its premium income to a specified amount;

(c) to refrain from making investments of a specified class or description;

(d) to realise, within a specified period, investments of a specified class or description;

(e) to maintain in the State assets of a value equal to the whole, or a specified proportion of, the amount of its liabilities in respect of business carried on in the State;

(f) to take such further measures as may be specified in the direction.

(5) The Bank may from time to time vary or revoke a direction given under this section.

(6) If an insurer has its head office in another EEA country, the Bank shall notify the supervisory authority of that country before issuing a direction under this section in respect of the insurer.

(7) On being satisfied on reasonable grounds that an insurer has not complied, or is not complying, with a direction under this section, the Bank may suspend or revoke the insurer's authorisation in respect of any class or part of a class of business in accordance with the procedures prescribed by section 58.

(8) An insurer—

(a) shall notify the Bank in writing of every proposal to appoint a person to a management position with the insurer, and

(b) shall not make the appointment if the Bank, within 30 days of being notified of the proposal, objects to the proposal on the ground that the person proposed to be appointed—

(i) does not have the appropriate qualifications or adequate experience, or

(ii) is not otherwise fit to hold the position.

(9) A direction or objection of the Bank under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.

Qualifications, experience and fitness of persons concerned in management of applicants for authorisations.

20A.—(1) For the purposes of this section, ‘management position’, in relation to an applicant for an authorisation, means— (a) a director, or (b) a management position specified by the Bank, or (c) an authorised agent.

20A.—(1) For the purposes of this section, ‘management position’, in relation to an applicant for an authorisation, means—

(a) a director, or

(b) a management position specified by the Bank, or

(c) an authorised agent.

(2) An applicant for an authorisation to carry on a specified class or description of insurance business shall provide the Bank with such information as the Bank requires concerning—

(a) the qualifications and experience of persons who hold, or whom the applicant proposes to appoint, to management positions with the applicant, and

(b) the fitness of those persons to hold those positions.

(3) The Bank shall not grant an authorisation if it appears to the Bank that a person referred to in subsection (2)—

(a) does not have the appropriate qualifications or adequate experience to hold a management position with the applicant, or

(b) is not otherwise fit to hold such a position.

Provisions supplementary to sections 20 and 20A.

20B.—(1) If the head office of an insurer or an applicant for an authorisation is not located within the State, sections 20 and 20A apply only to persons who perform functions of the undertaking in the State. (2) The Bank is not liable in respect of any claim for damages arising directly or indirectly from the application of any of the provisions of section 20 or 20A.”.

20B.—(1) If the head office of an insurer or an applicant for an authorisation is not located within the State, sections 20 and 20A apply only to persons who perform functions of the undertaking in the State.

(2) The Bank is not liable in respect of any claim for damages arising directly or indirectly from the application of any of the provisions of section 20 or 20A.”.

5.

Section 22

Substitute the following subsection for subsection (1E)

“(1E) The Bank may direct a company to stop carrying on the business referred to in subsection (1), by notice in writing either indefinitely or for such period as it may specify in the direction, in all or any of the following circumstances

(a) if the company contravenes subsection (1)(b) or (1C),

(b) if information that is, to the knowledge of the company, false or misleading is included in a notice of the company given under subsection (1)(b) or (1C),

(c) if the Bank considers that, having regard to the risks insured or proposed to be insured by the company, the company is under capitalised, or

(d) if the Bank considers that one or more of the directors or the senior managers of the company are not fit and proper, or are not suitably qualified, to direct and manage the company's business, or

(e) if the Bank considers that the company has not a sufficient number of fit and proper or suitably qualified employees in the State to carry on effectively the company's business, or

(f) if the Bank has information showing that the company has engaged in unlawful activities, either within or outside the State.

(1EA) A direction given by the Bank to a company under subsection (1E) does not absolve a company from performing its obligations in respect of the business of reinsurance carried on by it before that direction was given.”.

6.

Section 31

Delete subsections (3), (5) and (7).

7.

Section 58

(a) In subsection (3), substitute “all other EEA countries” for “any other Member State of the European Communities”;

(b) delete subsection (4).

PART 7 Amendment of Central Bank Act 1989

Amendment of Central Bank Act 1989

Item

Provision affected

Amendment

1.

Section 50 (as substituted by item 5 of Part 9 of Schedule 1 to the Central Bank and Financial Services Authority of Ireland Act 2003)

In subsection (4), insert “or 268” after “section 233”.

2.

Section 77

Substitute the following subsection for subsection (2)

“(2) The Minister may give consent under subsection (1) only after consulting the Minister for Enterprise, Trade and Employment, and after being satisfied that the Bank's proposed decision to approve or refuse its approval—

(a) would be in the interests of proper and orderly regulation of banking, and

(b) would be in the public interest, bearing in mind the effect of the transaction on the continued availability of financial services, both generally and on a social and geographical basis and on the capacity of the State to manage the State's economy generally and in order to comply with its obligations under the law of the European Communities.”.

3.

Section 101

Substitute the following subsection for subsection (1)

“(1) In approving rules of an existing exchange or for a proposed exchange, the Bank may impose conditions or requirements on the exchange.

(1A) The Bank may, at any time after approving the rules of any such exchange—

(a) impose further conditions or requirements on the exchange, or

(b) amend or revoke any condition or requirement imposed under this subsection or subsection (1).

(1B) The powers conferred on the Bank by subsections (1) and (1A) are exercisable only for the purposes of ensuring—

(a) the prudent regulation of the exchange concerned, and

(b) the protection of consumers of financial services, and

(c) the effective and efficient regulation of the State's financial system.

(1C) The Bank may extend a condition or requirement imposed on an exchange under subsection (1) or (1A) so that the condition or requirement also applies to either or both of the following

(a) all or any of the members of the exchange;

(b) any company established in connection with a member's membership of the exchange.

(1D) The Bank may not impose a condition or requirement under subsection (1) or (1A), or amend or extend such a condition or requirement, unless it—

(a) has notified the exchange, and any member or company affected by the condition or requirement, or by the amendment or extension, of its intention to impose the condition or requirement, or make the amendment or extension, and

(b) has given the exchange, and any such member or company, the opportunity to make representations to the Bank to show why the condition or requirement should not be imposed, or the amendment or extension should not be made.

(1E) If securities created by the Minister could be the subject of dealings on an exchange, the Bank shall not impose a condition or requirement under subsection (1) or (1A) in relation to any such dealings without having notified the Minister of its intention to impose the condition or requirement.”.

4.

Section 117

Substitute the following subsections for subsection (4)

“(4) A person supervised by the Bank who—

(a) fails to provide information in accordance with subsection (3)(a), or

(b) fails to comply with a direction under subsection (3)(b), or

(c) publishes, or issues a document that contains a reference to, a code of practice so as to suggest that the code has been issued or approved by the Bank when this is not the case,

commits an offence.

(4A) A person who is convicted of an offence under subsection (4) is liable—

(a) on summary conviction, to a fine not exceeding €2,000, or

(b) on conviction on indictment, to a fine not exceeding €40,000.

(4B) A person who—

(a) having been convicted of an offence under subsection (4)(a), continues to fail to provide information, or

(b) having been convicted of an offence under subsection (4)(b), continues to fail to comply with the direction,

commits a further offence on each day, or part of a day, on which the failure continues after that conviction.

(4C) A person who is convicted of an offence under subsection (4B) is for each such offence liable—

(a) on summary conviction, to a fine not exceeding €500, or

(b) on conviction on indictment, to a fine not exceeding €5,000.”.

PART 8 Amendment of Trustee Savings Banks Act 1989

PART 8

Amendment of Trustee Savings Banks Act 1989

Item

Provision affected

Amendment

1.

Section 24A

In subsection (3)(e), substitute “trustee savings bank or related body” for “licence holder”.

PART 9 Amendment of Companies Act 1990

PART 9

Amendment of Companies Act 1990

Item

Provision inserted

Amendment

1.

Section 253

In subsection (2A)(a), substitute “Central Bank” for “Bank”.

PART 10 Amendment of Stock Exchange Act 1995

PART 10

Amendment of Stock Exchange Act 1995

Item

Provision inserted

Amendment

1.

Section 30 (as amended by item 4 of Part 19 of Schedule 1 to the Central Bank and Financial Services Authority of Ireland Act 2003)

(a) In subsection (5), insert “, a member of or officer of the Regulatory Authority” after “the Bank”; (b) In subsection (6), insert “, a member or officer of the Regulatory Authority” after “the Bank”; (c) In the definition of “committee of inspection” in subsection (6B), insert “or 268” after “section 233”.

(a) In subsection (5), insert “, a member of or officer of the Regulatory Authority” after “the Bank”;

(b) In subsection (6), insert “, a member or officer of the Regulatory Authority” after “the Bank”;

(c) In the definition of “committee of inspection” in subsection (6B), insert “or 268” after “section 233”.

2.

Section 53

Substitute the following subsections for subsection (1)

“(1) This section applies to the following persons

(a) the supervisory authority;

(b) employees and officers of that authority;

(c) the members of any Board of that authority;

(d) the Regulatory Authority;

(e) members and officers of the Regulatory Authority and employees of the Bank.

(1A) A person to whom this section applies is not liable in damages for anything done or omitted to be done in performing functions under this Act unless it is proved that the act was done, or omitted to be done in bad faith.”.

3.

Section 55 (as amended by item 7 of Part 19 of Schedule 1 to the Central Bank and Financial Services Authority of Ireland Act 2003)

In subsection (1), insert “and may, whenever appropriate, revoke the appointments of those persons” after “this Act”.

4.

Section 65

Repeal the section.

5.

Section 69

(a) In subsection (3), insert the following paragraph after paragraph (a)

“(aa) a person authorised by the Chief Executive of the Regulatory Authority;”;

(b) Delete subsection (3)(d).

6.

Second Schedule

Repeal the Schedule.

PART 11 Amendment of Investment Intermediaries Act 1995

PART 11

Amendment of Investment Intermediaries Act 1995

Item

Provision affected

Amendment

1.

Section 2

(a) In subsection (1), insert the following definition after the definition of “director”

“ ‘financial institution’ means—

(a) an insurance undertaking as defined in Article 1(a) of Directive No. 92/49/EEC, or

(b) an assurance undertaking as defined in Article 1(a) of Directive No. 92/96/EEC, or

(c) a UCITS as defined in Article 1(2) of Directive No. 85/611/EEC (as amended), or

(d) an investment firm as defined in Article 1(2) of Directive No. 93/22/EEC, or

(e) any other undertaking the activities of which are similar to those of an undertaking referred to in subparagraphs (a) to (d) or the principal activity of which is to acquire holdings of financial assets,”;

(b) In subsection (1), insert the following definition after the definition of “proposed investment business firm”

“ ‘publication’ includes publication on an Internet website;”;

(c) In subsection (1), insert the following definition after the definition of “related undertakings”

“ ‘relevant collective investment scheme instrument’ means—

(a) units or shares in undertakings for collective investments in transferable securities within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003 (S.I. No. 211 of 2003), or

(b) units in a unit trust, or

(c) shares in an investment company, or

(d) capital contributions to an investment limited partnership;”;

(d) In subsection (1), substitute the following definition for the definition of “product producer”

“ ‘product producer’ means a firm, institution, collective undertaking, investment company or insurance undertaking of a kind referred to in section 26(1A);”.

2.

Section 6

Substitute the following subsection for subsection (1)

“(1) The expenses incurred by the Minister in administering this Act are payable out of money provided by the Oireachtas.”.

3.

Section 22

(a) In subsection (5), insert “, or a member or officer of the Regulatory Authority” after “the Bank”;

(b) In subsection (6), insert “, or a member or officer of the Regulatory Authority” after “the Bank”;

(c) In the definition of “committee of inspection” in subsection (6B), insert “or 268” after “section 233”;

(d) In subsection (6B), substitute the following definition for the definition of “responsible authority”

“ ‘responsible authority’ means—

(a) the Governor of the Bank, or

(b) the Chief Executive of the Regulatory Authority, or

(c) any person to whom the Governor of the Bank or the Chief Executive of that Authority has delegated responsibility for appointing persons under this section.”.

4.

Section 26

Substitute the following subsections for subsection (1)

“(1) An investment product intermediary is a restricted activity investment product intermediary for the purposes of this Act if—

(a) the only investment business service that the intermediary provides, or in relation to which the intermediary provides investment advice, is one or more of—

(i) receiving and transmitting orders for relevant collective investment scheme instruments, shares in a company that is listed on a stock exchange, bonds that are listed on a stock exchange, prize bonds, tracker bonds, insurance policies, or personal retirement savings accounts within the meaning of the Pensions Act 1990, or

(ii) acting as a deposit agent or as a deposit broker,

and

(b) in the course of performing an activity of the kind specified in paragraph (a), the intermediary transmits orders only to an entity, or an entity of a class, specified in subsection (1A), and

(c) the intermediary does not hold clients' funds or securities in such a way as, in dealings with clients, to become indebted to those clients.

(1A) The following entities and classes of entities are specified for the purposes of subsection (1)(b)

(a) investment firms authorised in accordance with Directive 93/22/EEC of 10 May 1993 by a competent authority of another Member State of the European Communities;

(b) authorised investment business firms (other than restricted activity investment product intermediaries or certified persons);

(c) member firms within the meaning of the Stock Exchange Act 1995;

(d) credit institutions authorised in accordance with Directives 77/780/EEC of 12 December 1977 and 89/646/EEC of 15 December 1989;

(e) in relation to investment business firms and credit institutions authorised to carry on business in a state other than a Member State, such branches of those firms or institutions as the supervisory authority approves from time to time;

(f) collective investment undertakings authorised under the law of a Member State of the European Communities to market units in collective investments to the public, and to the managers of such undertakings;

(g) investment companies with fixed capital as defined in Article 15(4) of Council Directive 77/91/EEC of 13 December 1976 the securities of which are listed or dealt in on a regulated market in a Member State;

(h) insurance undertakings;

(i) the Prize Bond Company Limited, or any successor to it as operator of the Prize Bond scheme.

(1B) An intermediary does not cease to be a restricted activity investment product intermediary for the purposes of this Act only because the intermediary—

(a) accepts non-negotiable cheques or similar instruments made out to a body referred to in subsection (1A) in connection with receiving and transmitting orders, or

(b) when acting as a deposit agent, accepts cash from a client for the client's account with a credit institution, or

(c) when providing services other than investment business services or investment advice, holds cash on behalf of clients, or

(d) accepts cash from a client in circumstances to which section 25G applies when acting as an insurance intermediary, or

(e) accepts cash from a client in circumstances to which section 25E applies when acting as a tied insurance agent.

(1C) Nothing in this section affects the obligation of a restricted activity investment product intermediary to comply with regulations in force under section 43D of the Insurance Act 1989 in so far as they relate to the matters referred to in section 43E(1)(a)(iii) and (iv) of that Act.”.

5.

Section 28

Substitute the following section for section 28

“Obligations on product producers.

28.—(1) A product producer may not— (a) appoint an investment product intermediary to act on its behalf— (i) in receiving or transmitting orders for collective investment scheme instruments, or

28.—(1) A product producer may not—

(a) appoint an investment product intermediary to act on its behalf—

(i) in receiving or transmitting orders for collective investment scheme instruments, or

(ii) in receiving or transmitting orders for company shares or bonds, that are listed on a stock exchange, or

(iii) in receiving or transmitting orders for prize bonds, or

(iv) in receiving or transmitting orders for tracker bonds, or

(v) in receiving or transmitting orders for insurance policies, or

(vi) in receiving or transmitting orders for personal retirement savings accounts, or

(vii) when acting as a deposit agent or as a deposit broker,

or

(b) pay commission to an investment product intermediary, or

(c) accept any orders transmitted, or any insurance placed, by an investment product intermediary on behalf of a client, unless to the best of the producer's knowledge, after having made reasonable enquiries, the investment product intermediary is appropriately qualified.

(c) accept any orders transmitted, or any insurance placed, by an investment product intermediary on behalf of a client,

unless to the best of the producer's knowledge, after having made reasonable enquiries, the investment product intermediary is appropriately qualified.

(2) An investment product intermediary is appropriately qualified for the purpose of subsection (1) only if the intermediary—

(a) is a certified person, or

(b) is of good character and is in compliance with this Act and, where the product producer is an insurance undertaking, is also in compliance with the Insurance Acts.

(3) For the purposes of subsection (2), a product producer is entitled to assume that an investment product intermediary is in compliance with this Act and with the Insurance Acts if the intermediary is authorised—

(a) by the supervisory authority under section 10 or 13 to operate as an investment business firm, or

(b) by a competent authority in another Member State to undertake activities similar to those undertaken by such a firm.

(4) Subsection (5) applies to and in respect of—

(a) product producers who appoint investment product intermediaries to act on their behalf for any purpose specified in subsection (1), and

(b) investment product intermediaries who are so appointed.

(5) On being requested to do so by notice in writing given by the supervisory authority, a product producer who has appointed an investment product intermediary shall, for so long as is specified in the notice, monitor the activities of the intermediary in order to be satisfied that the intermediary complies with the requirements imposed by or under this Act on investment product intermediaries. If requested to do so by that notice or by a further notice in writing given by the supervisory authority, the product producer shall also provide that authority with evidence in writing that that producer has not contravened subsection (7). The supervisory authority may provide a product producer with such information as appears to the supervisory authority necessary to enable the producer to comply with this subsection.

(6) A person who, for the purpose of obtaining an appointment of the kind referred to in section 27, gives information that the person knows or ought reasonably to know is false or misleading commits an offence.

(7) A product producer shall not—

(a) accept an order transmitted by an investment business firm on behalf of a client of the firm, or

(b) accept money belonging to such a client, or

(c) pay commission to the firm,

unless the firm is an investment business firm—

(d) that, to the best of the product producer's knowledge and belief, complies with this Act and, if the firm is an insurance intermediary, also complies with the Insurance Acts, and

(e) that is authorised under section 10 or is deemed to be authorised under section 26 or 63, and

(f) to which the product producer has given an appointment in writing in accordance with Part IV that has not been terminated.

(8) A product producer who contravenes subsection (7) commits an offence.

(9) In this section—

‘commission’ includes fee and any other form of remuneration.

(10) This section applies to and in respect of investment product intermediaries appointed before or after the commencement of item 5 of Part 11 of Schedule 3 to the Central Bank and Financial Services Authority of Ireland Act 2004.”.

6.

Section 52

Substitute the following subsection for subsection (6)

“(6) If—

(a) an authorised investment business firm maintains an account with a credit institution or a financial institution, and

(b) the account contains money, or relates to investment instruments or documents of title, entrusted to or received by the firm for or on account of a client,

the firm commits an offence if it fails to designate the account as a ‘section 52 account’ in all of its financial records. This subsection does not apply to an authorised investment business firm that is a certified person.”.

7.

Section 53

Substitute the following subsections for subsection (1)

“(1) This section applies to the following persons

(a) the supervisory authority;

(b) employees and officers of that authority;

(c) the members of any Board of that authority;

(d) the Regulatory Authority;

(e) members and officers of the Regulatory Authority and employees of the Bank.

(1A) A person to whom this section applies is not liable in damages for anything done or omitted to be done in performing functions under this Act unless it is proved that the act was done, or omitted to be done in bad faith.”.

8.

Section 58

Substitute the following subsections for subsection (1)

“(1) If the Bank grants approval under section 56, or consents to a proposed amendment to a memorandum or article of association or rules, it may, in the interests of the proper and orderly regulation and supervision of approved professional bodies or certified persons, also do all or any of the following

(a) make its approval or consent subject to such conditions or requirements as it considers fit;

(b) impose conditions or requirements that relate to the affairs or operation of an associated undertaking or related undertaking;

(c) amend or revoke conditions or requirements imposed under this subsection;

(d) at any time after approving a professional body impose conditions or requirements on the body, including—

(i) a requirement that the body amend any memorandum of association or articles of association of the body, and

(ii) if the body has rules relating to the provision of investment business services or investment advice by certified persons, or the regulation and supervision of certified persons — a requirement that the body amend or revoke those rules.

(1A) The Minister may, from time to time in the interests of the proper and orderly regulation and supervision of approved professional bodies or certified persons, issue guidelines to the Bank with respect to the imposition by the Bank of conditions and requirements under subsection (1). However, the Minister is required to obtain the consent of the Minister for Justice, Equality and Law Reform before issuing any such guidelines that relate to an approved body of lawyers.

(1B) As soon as practicable after issuing guidelines under subsection (1A), the Minister shall arrange for notice of their issue to be published in Irish Oifigiúil. Failure to comply with this subsection does not of itself affect the validity of the guidelines concerned.

(1C) When imposing a condition or requirement under subsection (1), or amending such a condition or requirement, the Bank shall comply with any guidelines issued to it under subsection (1A).”.

9.

Section 64

(a) In subsection (1), insert “and may, whenever appropriate, revoke the appointments of those persons” after “this Act”;

(b) substitute the following subsection for subsection (4)

“(4) In this section, ‘responsible authority’ means—

(a) the Governor of the Bank, or

(b) the Chief Executive of the Regulatory Authority, or

(c) any person to whom the Governor of the Bank or the Chief Executive of that Authority has delegated responsibility for appointing persons under this section.”.

10.

Section 71

Substitute the following subsection for subsection (4)

“(4) The Minister may lay before each House of the Oireachtas a report forwarded under subsection (2) if the Minister thinks it proper to do so having regard to the public interest and the rights of any person referred to in the report.”.

11.

Section 74

Repeal the section.

12.

Section 78

In subsection (3), substitute the following paragraph for paragraph (c)

“(c) a person authorised by the Chief Executive of the Regulatory Authority;”.

13.

Section 79

Substitute the following subsection for subsection (1)

“(1) A person who is found guilty of an offence under section 9, 10(16), 16(14), 19(1)(b), 21(9), 23(1), 23(15), 28(6) and (9), 30, 34(1), 34(3), 35(4), 36(6), 46(2), 52(3), 52(5), 52(6), 52(9), 54(6), 56(9), 61(14), 75(3), 78(2), 79(4), 79(7), 79(8) of, or paragraph 8(3) of the First Schedule to this Act is liable—

(a) on summary conviction to a fine not exceeding €1,250 or, in the case of a natural person, to imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €1,250,000 or, in the case of a natural person, to imprisonment for a term not exceeding 10 years, or both.”.

14.

Second Schedule

Repeal the Schedule.

PART 12 Amendment of Consumer Credit Act 1995

Amendment of Consumer Credit Act 1995

Item

Provision inserted

Amendment

1.

Section 2

(a) In subsection (1), insert the following definition after the definition of “borrower”

“‘business’ includes trade and profession;”;

(b) in subsection (1), substitute the following definition for the definition of “consumer”

“‘consumer’ means—

(a) a natural person acting outside the person's business, or

(b) any person, or person of a class, declared to be a consumer in an order made under subsection (9);”;

(ba) in subsection (1), to substitute the following definition for the definition of “housing loan”

“‘housing loan’ means—

(a) an agreement for the provision of credit to a person on the security of a mortgage of a freehold or leasehold estate or interest in land—

(i) for the purpose of enabling the person to have a house constructed on the land as the principal residence of that person or that person's dependants, or

(ii) for the purpose of enabling the person to improve a house that is already used as the principal residence of that person or that person's dependants, or

(iii) for the purpose of enabling the person to buy a house that is already constructed on the land for use as the principal residence of that person or that person's dependants,

or

(b) an agreement for refinancing credit provided to a person for a purpose specified in paragraph (a)(i), (ii) or (iii), or

(c) an agreement for the provision of credit to a person on the security of a mortgage of a freehold or leasehold estate or interest in land on which a house is constructed where the house is to be used, or to continue to be used, as the principal residence of the person or the person's dependants, or

(d) an agreement for the provision of credit to a person on the security of a mortgage of a freehold or leasehold estate or interest in land on which a house is, or is to be, constructed where the person to whom the credit is provided is a consumer;”;

(c) in subsection (1), substitute the following definition for the definition of “mortgage intermediary”

“‘mortgage intermediary’ means a person (other than a mortgage lender or credit institution) who, in return for commission or some other form of consideration—

(a) arranges, or offers to arrange, for a mortgage lender to provide a consumer with a housing loan, or

(b) introduces a consumer to an intermediary who arranges, or offers to arrange, for a mortgage lender to provide the consumer with such a loan;”;

(d) in subsection (1), substitute the following definition for the definition of “mortgage lender”

“ ‘mortgage lender’ means a person who carries on a business that consists of or includes making housing loans;”;

(e) insert the following subsection after subsection (8)

“(9) The Minister for Finance may, by order notified in Iris Oifigiúil, declare any specified person, or any person of a specified class of persons, to be a consumer for the purposes of the definition of ‘consumer’ in subsection (1).”.

2.

Section 12

Substitute the following subsections for subsections (1) and (2)

“(1) A person commits a summary offence under this Act if the person—

(a) in Part IA, contravenes section 7(2) or (3), 8(2), 8D or 8F, or

(b) in Part IB, contravenes section 8K(2) or (3), 8L(2) or 8P, or

(c) in Part II, contravenes section 26 or 27, or regulations under section 28, or

(d) in Part III, contravenes section 39, or

(e) in Part IV, contravenes section 43(2), or

(f) in Part VI, contravenes section 61, 64 (1) or 69, or

(g) in Part VII, contravenes section 87 or 91, or

(h) in Part VIII, contravenes section 93(6) or (9), 94, 95, 98(4) or (5), 99, 105(3) or (4), 106(2) or (3), or

(i) in Part IX, contravenes section 116(1) or (2), 117, 122(3), 123, 124, 128, 129(2), 130, 131(4) or (5), 132, 133(1) or (2), 134 or 135(3), or

(j) in Part X, contravenes section 138, 139, 142 or 143(2), or regulations made under section 137, or

(k) in Part XI, contravenes section 144(1) or (3), 145 or 148.

(2) A person commits an offence under this Act (other than a summary offence) if the person—

(a) in Part IV, contravenes section 45, 46 or 49, or

(b) in Part V, contravenes section 54, or

(c) in Part VIII, contravenes section 96, 97, 98(1) or (2), 100, 101, 102, 103(2), 107, 110 or 111, or

(d) in Part IX, contravenes section 118 or 127, or

(e) in Part X, contravenes section 140, or

(f) in Part XI, contravenes section 146, or

(g) in Part XII, contravenes section 149(1), (12A) or (12C), section 149A(2), (14) or (16) or a direction given under section 149(5) or (6) or section 149A(6) or (7).”.

3.

Section 116

(a) Substitute the following subsection for subsection (7)

“(7) Except as provided by subsection (7A), an authorisation remains in force for 12 months from the date specified in the authorisation.

(7A) In the case of a particular applicant, or an applicant of a particular class designated by the Bank for the purposes of this subsection, the Bank may, if it so chooses, grant an authorisation for a period longer than 12 months, subject to such conditions or requirements as the Bank specifies. If the Bank grants an authorisation for a period longer than 12 months, the authorisation remains in force for that period from the date specified in the authorisation.”.

(b) Substitute the following subsection for subsection (9)

“(9) The Bank may refuse to grant an authorisation on any of the following grounds

(a) the applicant does not satisfy the condition specified in subsection (1)(b);

(b) the applicant, or any business with which the applicant is or has been associated, has, during the previous 5 years, been convicted of an offence that, if committed by a natural person, would be punishable by imprisonment;

(c) the applicant is the holder of—

(i) a bookmaker's licence issued under the Betting Act 1931, or

(ii) a licence for the sale of intoxicating liquor granted under the Licensing Acts 1833 to 1994, or

(iii) a gaming licence issued under the Gaming and Lotteries Act 1956, or

(iv) a pawnbroker's licence granted under the Pawnbrokers Act 1964, or

(v) a moneylender's licence;

(d) the applicant has failed to provide a current Revenue tax clearance certificate in respect of himself or his business;

(e) the applicant is not, in the opinion of the Bank, a fit and proper person to carry on business as a mortgage intermediary.”;

(c) Substitute the following subsection for subsection (11)

“(11) The Bank may suspend or revoke an authorisation on any of the following grounds

(a) the holder no longer satisfies the condition specified in subsection (1)(b);

(b) the holder, or any business entity with which the holder is associated, is convicted of an offence that, if committed by a natural person, would be punishable by imprisonment;

(c) the holder has become the holder of—

(i) a bookmaker's licence issued under the Betting Act 1931, or

(ii) a licence for the sale of intoxicating liquor granted under the Licensing Acts 1833 to 1994, or

(iii) a gaming licence issued under the Gaming and Lotteries Act 1956, or

(iv) a pawnbroker's licence granted under the Pawnbrokers Act 1964, or

(v) a moneylender's licence;

(d) the holder is failing, or has failed, to provide a current Revenue tax clearance certificate in respect of the holder or the holder's business;

(e) the holder is failing, or has failed to comply, with a condition or requirement imposed on the holder under subsection (7);

(f) the applicant is contravening or has contravened a regulation in force under subsection (10);

(g) the holder is no longer, in the opinion of the Bank, a fit and proper person to carry on the business of a mortgage intermediary;

(h) the Bank would, if the holder were an applicant for an authorisation, be entitled to refuse to grant an authorisation to the applicant on a ground specified in subsection (9).”.

4.

Section 149 (as substituted by item 42 of Part 21 of Schedule 1 of the Central Bank and Financial Services Authority of Ireland Act 2003)

Insert the following subsections after subsection (12): “(12A) A credit institution shall not impose a charge for providing a service to a customer or group of customers if— (a) the charge has not been previously notified to the Bank or to the Director, or (b) the charge exceeds the charge notified for the service in accordance with subsection (1), or (c) the charge does not comply with a direction issued by the Bank under this section.

Insert the following subsections after subsection (12)

“(12A) A credit institution shall not impose a charge for providing a service to a customer or group of customers if—

(a) the charge has not been previously notified to the Bank or to the Director, or

(b) the charge exceeds the charge notified for the service in accordance with subsection (1), or

(c) the charge does not comply with a direction issued by the Bank under this section.

(12B) The Bank may, by notice given in writing, require a specified credit institution, or credit institutions of a specified class, to publish in such publications, and within such timeframes, as are specified in the notice details of the amounts of charges notified to the Bank under this section.

(12C) A credit institution to which a notice has been given under subsection (12B) shall comply with the notice within the timeframe specified in the notice.”.

5.

Section 149A (as substituted by item 43 of Part 21 of Schedule 1 of the Central Bank and Financial Services Authority of Ireland Act 2003)

(a) Substitute “regulated business” for “bureau de change business”, wherever occurring; (b) Substitute the following subsections for subsection (14): “(14) A holder of an authorisation shall not impose a charge for providing a service to a customer or group of customers if— (a) the charge has not been previously notified to the Bank or to the Director, or

(a) Substitute “regulated business” for “bureau de change business”, wherever occurring;

(b) Substitute the following subsections for subsection (14)

“(14) A holder of an authorisation shall not impose a charge for providing a service to a customer or group of customers if—

(a) the charge has not been previously notified to the Bank or to the Director, or

(b) the charge exceeds the charge notified for the service in accordance with subsection (2), or

(c) the charge does not comply with a direction issued by the Bank under this section.

(15) The Bank may, by notice given in writing, require a specified holder of an authorisation, or holders of a specified class of authorisation, to publish in such publications, and within such timeframes, as are specified in the notice details of the amounts of charges notified to the Bank under this section.

(16) A holder of an authorisation to whom a notice has been given under subsection (15) shall comply with the notice within the timeframe specified in the notice.

(17) In this section—

‘bureau de change business’ has the same meaning as in section 28 of the Central Bank Act 1997 (as substituted by section 27 of the Central Bank and Financial Services Authority of Ireland Act 2004);

‘service’ means any service provided by the holder of an authorisation to a customer in relation to a bureau de change business or money transmission business carried on by that holder;

‘money transmission business’ has the same meaning as in section 28 of the Central Bank Act 1997 (as substituted by section 27 of the Central Bank and Financial Services Authority of Ireland Act 2004).”.

PART 13 Amendment of Netting of Financial Contracts Act 1995

Amendment of Netting of Financial Contracts Act 1995

Item

Provision inserted

Amendment

1.

Section 1

In the definition of “financial contracts”, substitute the following paragraph for paragraph (g)

“(g) contracts designated by regulations made under section 3.”.

PART 14 Amendment of Credit Union Act 1997

PART 14

Amendment of Credit Union Act 1997

Item

Provision affected or inserted

Amendment

1.

Sections 37A, 37B, 37C, 37D, 37E and 37F

Insert the following sections after section 37

“Member to receive written notice of loan approval.

37A.—(1) On approving a loan in accordance with section 36 or 37, a credit union shall, in writing, notify the member who applied for the loan of the approval and of any time limit within which the approval will expire.

(2) A notice under subsection (1) may be in a form that, when endorsed by the member on accepting a loan offered by the credit union, constitutes a credit agreement for the purposes of section 37B and 37C.

Credit agreement in respect of loans exceeding €200.

37B.—(1) If the amount of a loan approved by a credit union exceeds €200, the credit union shall ensure that—

(a) a credit agreement is entered into in writing and signed by the member concerned and by or on behalf of all other parties to the agreement, and

(b) a copy of the agreement—

(i) is handed personally to the member immediately after the agreement is entered into, or

(ii) is delivered or sent to the member within 10 days after the agreement is entered into, and

(c) any contract of guarantee relating to the loan is in writing and signed by the guarantor and by or on behalf of all other parties to the agreement, and a copy of the guarantee and the agreement—

(i) is handed personally to the guarantor immediately after the contract is entered into, or

(ii) is delivered or sent to the guarantor within 10 days after the contract is entered into.

(2) For the purposes of this section, a contract of guarantee—

(a) includes the indemnity referred to in section 35(1), and

(b) may form part of the relevant agreement or may be in a separate document.

(3) A credit union that makes a loan without having complied with subsection (1) commits an offence.

(4) If a credit union is found guilty of an offence against subsection (3), the following provisions apply

(a) the credit union is taken to have waived all interest agreed to be paid by the member in respect of the loan;

(b) the member, or the member's personal representative, is entitled to recover as a debt, by proceedings brought in a court of competent jurisdiction, any interest paid in respect of the loan.

Contents of credit agreements.

37C.—(1) When entering into a credit agreement with a member, a credit union shall ensure that it contains a statement setting out the following particulars

(a) the name and address of each party to the agreement;

(b) the amount of the loan provided under the agreement and the total amount payable in respect of the loan;

(c) details of the security (if any) given in respect of the loan;

(d) the date or dates on which the loan is to be provided (unless unascertainable at the time of the agreement);

(e) the number of repayment instalments under the agreement and amount of each of those instalments;

(f) the date, or the method of determining the date, on which each repayment instalment is payable;

(g) the rate of interest charged in respect of the loan and the relevant APR;

(h) the circumstances in which that APR may be amended;

(i) any charges that, although not included in the calculation of the APR, must be paid by the member in specified circumstances;

(j) the date on which the loan expires;

(k) the manner in which the member can terminate the agreement before the final repayment instalment is payable and the cost to the member of terminating the agreement;

(l) any cost or penalty that the member may incur for failing to comply with the agreement.

(2) The credit union shall also ensure that the agreement specifies a cooling-off period under which the member—

(a) has a right to withdraw from the agreement without penalty if the member gives to the credit union a written notice to that effect within 10 days after the date of receiving a copy of the agreement, or

(b) may indicate that the member does not wish to exercise the right.

(3) The indication referred to in subsection (2)(b) must be in the form of a statement signed by the member. The member's signature must be separate from, and additional to, the member's signature to the agreement.

(4) A credit union that fails to comply with subsection (1) or (2) commits an offence.

Notice of important information to be included in credit agreements.

37D.—(1) A credit union shall not enter into a credit agreement with a member, unless the agreement and the notice referred to in section 37A(1) display prominently on their respective front pages, in a form approved by the Bank, the following information

(a) the amount of the loan;

(b) the period of the agreement;

(c) the number of repayment instalments;

(d) the total amount repayable to the credit union;

(e) the cost of the loan to the member;

(f) the APR in respect of the loan;

(g) particulars of the cooling-off period.

(2) A credit union that contravenes subsection (1) commits an offence.

Definition and calculation of ‘APR’ for the purposes of sections 37C and 37D.

37E.—(1) For the purposes of sections 37C and 37D—

‘APR’, in relation to a credit agreement entered into between a credit union and a member, means the annual percentage rate of charge.

(2) The APR specified in a credit agreement must be that rate, on an annual basis that equalises the present value of all commitments (loans, repayments and charges), future or existing, agreed by the credit union and the member concerned, calculated in accordance with the mathematical formula set out in Annex II to the European Communities (Consumer Credit) Regulations 2000 (S.I. No. 294 of 2000) as in force from time to time.

Regulations for the purposes of sections 37A-37D.

37F.—The Minister may make regulations under section 182 as to the form and content of credit agreements and, for that purpose, may amend or modify sections 37A, 37B, 37C or 37D.”.

2.

Section 114 (as amended by item 77 of Part 24 of the Central Bank and Financial Services Authority of Ireland Act 2003)

(a) In subsection (1)(a), substitute “the Minister for Enterprise, Trade and Employment” for “the Minister”; (b) in subsection (1)(b), substitute “that Minister” for “the Minister”.

(a) In subsection (1)(a), substitute “the Minister for Enterprise, Trade and Employment” for “the Minister”;

(b) in subsection (1)(b), substitute “that Minister” for “the Minister”.

3.

Section 125

Insert the following subsection after subsection (8)

“(9) Nothing in this Part or in a credit union's rules prevents the Financial Services Ombudsman from investigating and adjudicating a complaint made against a credit union under Part VIIB of the Central Bank Act 1942 about the provision of, or the failure to provide, a financial service, so long as the complaint—

(a) falls within the jurisdiction of that Ombudsman under that Part, and

(b) does not relate to a matter that involves only the governance of the credit union.”.

4.

Section 126

Insert the following subsections after subsection (5)

“(6) The Financial Services Ombudsman may, if satisfied that the circumstances make it appropriate to do so, deal with a dispute that would, but for subsection (3), be a complaint in respect of which that Ombudsman would have jurisdiction under Part VIIB of the Central Bank Act 1942.

(7) If the Financial Services Ombudsman elects to deal with a dispute as provided by subsection (6), subsection (3) ceases to apply to the dispute.”.

5.

Section 127

Delete the section.

PART 15 Amendment of Investor Compensation Act 1998

PART 15

Amendment of Investor Compensation Act 1998

Item

Provision affected or inserted

Amendment

1.

Section 2

(a) In subsection (1), insert the following definition after the definition of “Act of 1995”

“ ‘administration’, in relation to a collective investment scheme, includes (but is not limited to)—

(a) performing a valuation service, and

(b) performing a fund accounting service, and

(c) acting as a transfer agent, and

(d) acting as a registration agent;”;

(b) in subsection (1), substitute the following definition for the definition of “administrator”

“ ‘administrator’, in relation to an investment firm, means an administrator of the firm appointed under section 33 or 33A;”;

(c) in subsection (1), insert the following definition after the definition of “close relative”

“ ‘Companies Acts’ means the Companies Act 1963 as amended from time to time, and includes all Acts that are to be construed together with that Act as one Act;”;

(d) in subsection (1), insert the following definition after the definition of “Minister”

“ ‘operator’, in relation to an investor compensation scheme approved under section 25, means the person responsible for operating the scheme;”;

(e) substitute the following subsection for subsection (5)

“(5) Despite subsection (1), a firm is not an authorised investment business firm, or authorised as such, for the purposes of this Act if—

(a) the firm is not an investment firm within the meaning of the Investor Compensation Directive, and

(b) the only activity that the firm is authorised to carry on under the Investment Intermediaries Act 1995 is either administering collective investment schemes or undertaking custodial responsibilities involving the safekeeping and administration of investment instruments of or relating to such schemes.”.

2.

Section 9

In subsection (4)(c), substitute the following subparagraph for subparagraph (iii)

“(iii) an authorised officer appointed under section 17A of the Central Bank Act 1971, or”.

3.

Section 19

In subsection (3), insert “the operator of” after “by”.

4.

Section 20

Insert the following subsections after subsection (2)

“(3) The Company is responsible only for the expenses of an administrator that are properly incurred in the course of performing the administrator's functions under this Act.

(4) The Company is not responsible for expenses that an administrator of an investment firm incurs in respect of functions that the administrator performs contemporaneously with functions that the administrator performs as liquidator of the firm. It makes no difference that the functions performed as liquidator also relate to the performance of functions as administrator of the firm.”.

5.

Section 21

In subsection (3)(b), substitute “Investor Compensation Directive” for “Investment Services Directive”.

6.

Section 25

In subsection (6), substitute the following paragraph for paragraph (c)

“(c) as to the probity and competence of each of the directors and other persons concerned in the management of the proposed scheme,”.

7.

Section 27

In subsection (3)(a), insert “the operator of” after “the Company or to”.

8.

Section 32

(a) In subsection (1), substitute “the operator of” for “the person responsible for administering”;

(b) in subsection (1)(b), substitute the following paragraph for paragraph (b)

“(b) a court has made a ruling (other than a decision under the Companies Acts appointing an examiner or provisional liquidator),”;

(c) substitute the following subsection for subsection (2)

“(2) If the supervisory authority is satisfied that an investor was, for good reason, unable to make an application for a payment under section 34 within the period stipulated by the Company, or by the operator of the compensation scheme, the supervisory authority shall direct the Company or operator to treat the application as if it were made within the stipulated period.”.

9.

Section 33

(a) Insert the following subsection after subsection (1)

“(1A) The supervisory authority may appoint an administrator under subsection (1) only with the agreement of the Company.”.

(b) Substitute the following subsections for subsection (3)

“(3) The administrator shall deliver to the Company, or, where appropriate, to the operator of the compensation scheme concerned—

(a) a statement, or

(b) if an interim statement is delivered under subsection (3B), a final statement,

specifying the names of eligible investors and the net loss (if any) and the compensatable loss (if any) of each of those investors.

(3A) As a prelude to complying with subsection (3), the administrator may, if the Company or the operator of the relevant compensation scheme so agrees, deliver an interim statement specifying names of eligible investors and the estimated net losses (if any) and the estimated compensatable loss (if any) of each of those investors.

(3B) On, or as soon as practicable after, delivering a statement in accordance with subsection (3) or (3A), the administrator shall deliver a copy of the statement to the supervisory authority.”.

10.

Section 33A

Insert the following section after section 33

“Appointment of liquidator or official assignee as administrator.

33A.—If the Court has appointed a liquidator or the official assignee in respect of an investment firm, it may also appoint the liquidator or official assignee as administrator of the firm, but only as a result of a proposal made by the supervisory authority with the agreement of the Company.”.

11.

Section 34

(a) In subsection (2), substitute “the operator of the compensation scheme” for “that compensation scheme”;

(b) substitute the following subsection for subsection (3)

“(3) If the administrator has delivered an interim statement in accordance with section 33(3A), the Company or operator of the compensation scheme concerned may make provisional compensation payments under this section on the basis of that statement. If, in relation to an eligible investor, the amount of compensation paid on the basis of that statement is less than that specified in the final statement delivered in accordance with section 33(3), the Company or operator of the compensation scheme concerned shall make a further compensation payment to the investor in respect of the outstanding balance.”;

(c) in subsection (4), substitute “the operator of the compensation scheme” for “the relevant compensation scheme”;

(d) in subsection (5), substitute “the operator of a compensation scheme approved” for “a compensation scheme approved of”;

(e) insert the following subsection after subsection (7)

“(8) The Company or the operator of the compensation scheme concerned may appeal to the Court against a statement of compensatable loss delivered in accordance with section 33(3) or 33(3A) on the ground that the loss has not been properly calculated in accordance with section 30. However, the right conferred by this subsection may be exercised only after consultation with the supervisory authority.”.

12.

Section 35

(a) In subsection (1), substitute “the operator of a compensation scheme approved” for “a compensation scheme approved of”;

(b) In subsection (1), substitute “the Company or operator” for “the Company or compensation scheme”;

(c) In subsection (2)(a), substitute “the operator of a compensation scheme approved” for “a compensation scheme approved of”;

(d) in subsection (5), substitute “the operator of an investor compensation scheme approved” for “an investor compensation scheme approved of”;

(e) in subsection (5), substitute “the Company or operator” for “the company or compensation scheme”;

(f) insert the following subsection after subsection (5)

“(5A) If—

(a) an eligible investor proves a claim in the liquidation proceedings referred to in subsection (5), and

(b) the amount proved exceeds the amount of compensation paid by the Company, or by the operator of a compensation scheme approved under section 25,

the claim of the investor and the subrogated claim of the Company, or operator of the compensation scheme, for the amount of the excess rank equally in those proceedings and are to be paid proportionately. If the assets are insufficient to meet those claims, they are to abate in equal proportions.”.

(g) in subsection (6), substitute “the operator of an investor compensation scheme approved” for “an investor compensation scheme approved of”;

(h) in subsection (6), substitute “the Company or operator” for “the company or compensation scheme”;

(i) insert the following subsection after subsection (6)

“(6A) If—

(a) an eligible investor proves a claim under a bond or policy of professional indemnity insurance referred to in subsection (6), and

(b) the amount proved exceeds the amount of compensation paid by the Company, or by the operator of a compensation scheme approved under section 25,

the claim of the investor and the subrogated claim of the Company, or operator of the compensation scheme, for the amount of the excess rank equally in those proceedings and are to be paid proportionately. If the assets are insufficient to meet those claims, they are to abate in equal proportions.”.

13.

Section 36

Substitute the following section for section 36

“Provisions relating to investment product intermediaries.

36.—(1) A product producer from whom an investment product intermediary holds a valid written appointment shall, in respect of each eligible investor to whom the Company is liable to make a payment in respect of the intermediary under section 34, pay to the Company an amount calculated as follows

A = ICL RAV ____ INL

A = ICL RAV

____

INL

where—

‘A’ represents the amount to be calculated;

‘ICL’ represents the eligible investor's compensatable loss;

‘RAV’ represents the amount of client money or the value of investment instruments forming part of the net loss of the eligible investor that were entrusted by the investor to an investment product intermediary for transmission to an identifiable product producer from whom the intermediary held a valid written appointment when the money was, or the investment instruments were, so entrusted;

‘INL’ represents the net loss of the eligible investor.

(2) Product producers are to be subrogated to the Company with respect to claims of the Company against an investment firm in relation to money that product producers have paid to the Company under this section.

(3) Nothing in a contract can affect the liability of a product producer under this section.

(4) The Company may, by proceedings brought in a court of competent jurisdiction, recover as a debt an amount payable to the Company under subsection (1).”.

14.

Section 39

In subsection (2), substitute “the operator of that compensation scheme” for “that investor compensation scheme”.

ISB Act 2004-07-05

Schedule 4 Central Bank and Financial Services Authority of Ireland Act 2004 Open official source

SCHEDULE 4 Miscellaneous Amendments to Other European Communities Regulations Administered by the Bank

Miscellaneous Amendments to Other European Communities Regulations Administered by the Bank

Section 34.

PART 1 Amendment of European Communities (Consolidated Supervision of Credit Institutions) Regulations 1992 (S.I. No. 396 of 1992)

PART 1

Amendment of European Communities (Consolidated Supervision of Credit Institutions) Regulations 1992 (S.I. No. 396 of 1992)

Item

Provision affected

Amendment

1.

Regulation 2

(a) In subsection (1), substitute the following definition for the definition of “associated enterprise”

“ ‘associated enterprise’, in relation to a credit institution, means—

(a) a company in respect of which the institution holds—

(i) not less than 20 per cent of the nominal value of the company's equity share capital, or

(ii) not less than 20 per cent of the voting shares of the company,

or

(b) a subsidiary company of the institution, or

(c) a holding company of the institution, or

(d) if the institution is a subsidiary company of another company—

(i) the other company, or

(ii) any other subsidiary of the other company,

or

(e) an associated company of the institution,

or

(f) a partnership in which the institution has an interest, and whose business is or, at the relevant time, was, in the opinion of the Bank, materially relevant to any inspection of the institution being carried out or proposed to be carried out under this section;”;

(b) In subsection (1), insert the following definitions after the definition of “the Directive”

“ ‘holding company’ has the meaning given by section 2 of the Central Bank Act 1942;

‘subsidiary company’ has the meaning given by section 2 of the Central Bank Act 1942.”.

2.

Regulation 4

Substitute the following regulation

“4. (1) A reference to functions in sections 17A and 18 of the Act of 1971 (as respectively substituted by item 2 of Part 6 of Schedule 1 to the Central Bank and Financial Services Authority of Ireland Act 2003 and amended by section 37 of the Central Bank Act 1989) includes a reference to any function imposed on the Bank by these Regulations and the Directive.

(2) In relation to any investigation or inspection carried out, or any information, document, report or other material or explanation required, by the Bank for the purposes of performing a function imposed on it by these Regulations or the Directive, the Bank has and may exercise the same powers as are conferred on the Bank by section 41 of the Building Societies Act 1989 in relation to—

(a) investigating or inspecting the state and conduct of the business of a building society, or a corporate body that is a subsidiary or associated body of a society, or any particular aspect of that business, or

(b) requiring a society or other body corporate to provide the Bank with information, documents, reports or other material or explanations under section 41(2) of that Act.”.

PART 2 Amendment of European Communities (Cross-Border Credit Transfers) Regulations 2003 (S.I. No. 231 of 2003)

PART 2

Amendment of European Communities (Cross-Border Credit Transfers) Regulations 2003 (S.I. No. 231 of 2003)

Item

Provision affected

Amendment

1.

Regulation 2

Insert the following definition after the definition of “financial institution”

“ ‘Financial Services Ombudsman’ means the Financial Services Ombudsman holding office as such under Part VIIB of the Central Bank Act 1942 or acting in that office;”.

2.

Regulation 14

Substitute the following regulation

“14.—The Financial Services Ombudsman is responsible for investigating and adjudicating a dispute arising from the application of these Regulations if the dispute is between—

(a) an originator and the originator's institution, or

(b) a beneficiary and the beneficiary's institution.”.

PART 3 Amendment of European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003 (S.I. No. 211 of 2003)

Amendment of European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003 (S.I. No. 211 of 2003)

Item

Provision affected

Amendment

1.

Regulation 98

(a) In paragraph (5), substitute “(4)” for “(1)”;

(b) in paragraph (6), substitute “(3), (4) and (5)” for “(3) and (4)”.

ISB Act 2004-07-05

Schedule 5 Central Bank and Financial Services Authority of Ireland Act 2004 Open official source

SCHEDULE 5 Savings and Transitional Provisions

SCHEDULE 5

Savings and Transitional Provisions

Section 35.

Interpretation: Schedule 5

1. In this Schedule, “the Bank” means the Central Bank and Financial Services Authority of Ireland, and includes the Irish Financial Services Regulatory Authority performing the functions or exercising the powers of that Bank in accordance with section 33C of the Central Bank Act 1942.

Authorisations to carry on bureau de change business under Part V of the Central Bank Act 1997

2. (1) An authorisation having effect under Part V of the Central Bank Act 1997 immediately before the commencement of section 22 of this Act continues to have effect under that Part as substituted by that section and as if the substituted Part had been in force when the authorisation was granted.

(2) Any action taken under Part V of the Central Bank Act 1997 before the commencement of section 22 of this Act and not completed before that commencement may, if it could be taken under that Part as substituted by that section, be continued or completed under that Part as so substituted.

(3) In subparagraph (2), the reference to action taken includes (but is not limited to) proceedings (whether civil or criminal) taken before a court.

Savings for certain directions and requirements given or made by Bank

3. If—

(a) a direction or requirement has been given or made by the Bank or the Regulatory Authority under a provision of an Act or statutory instrument substituted or amended by Schedule 1 or 2, and

(b) the direction or requirement has not been complied with, withdrawn or otherwise disposed of before the commencement of the substituted provision or the amendment,

the provision continues to have effect in relation to the direction or requirement as if the substituted provision or the amendment had not commenced.

Savings for certain proceedings pending before the High Court

4. If any appeal or other proceeding is pending before the High Court under a provision of an Act or statutory instrument substituted or amended by Schedule 1 or 2 immediately before the commencement of the substituted section or the amendment, the High Court may hear and determine the appeal or other proceeding as if that section or amendment had not commenced.

Saving for certain pending criminal proceedings

5. (1) If any proceedings for an offence under section 70 of the Stock Exchange Act 1995—

(a) were pending immediately before the commencement of item 14 of Part 4 of Schedule 1 to this Act, or

(b) could have been brought under that section before that commencement,

the proceedings may be prosecuted and disposed of, or may be brought, prosecuted and disposed of, under that section as if that item had not commenced.

(2) If any proceedings for an offence under section 79 of the Investment Intermediaries Act 1995—

(a) were pending immediately before the commencement of item 13 of Part 11 of Schedule 3 to this Act, or

(b) could have been brought under that section before that commencement,

the proceedings may be prosecuted and disposed of, or may be brought, prosecuted and disposed of, under that section as if that item had not commenced.

Insurance risks

6. Section 3 of the Insurance Act 1964 (as amended by item 1 of Part 3 of Schedule 3 to this Act) extends to risks arising under insurance policies in force immediately before the commencement of that item.

Exemptions granted by Bank

7. If—

(a) an exemption granted by the Bank under a provision that is substituted or amended by a provision of Schedule 3 to this Act had not ceased to have effect before the commencement of the substituted or amended provision, and

(b) the exemption could be granted under the substituted or amended provision,

the exemption continues to have effect as if it had been granted under the substituted or amended provision.

Notices given by Bank

8. If—

(a) any notice given, served or issued by the Bank under a provision of an Act substituted or amended by a provision of Schedule 3 to this Act had not ceased to have effect before the commencement of the substituted or amended provision, and

(b) the notice could be given, served or issued under the substituted or amended provision,

the notice continues to have effect as if it had been given, served or issued under the substituted or amended provision.

Conditions or requirements imposed by or under substituted or amended provision

9. If—

(a) a condition or requirement has been imposed under a provision of an Act substituted or amended by a provision of Schedule 3 to this Act, and

(b) the condition or requirement has not ceased to have effect before the commencement of the substituted or amended provision, and

(c) the condition or requirement could be imposed under the substituted or amended provision,

the condition or requirement continues to have effect under the substituted or amended provision.

Approvals and consents given under certain substituted or amended provisions

10. If—

(a) an approval or consent given under a provision that is substituted or amended by a provision of Schedule 3 to this Act has effect immediately before the commencement of the substituted or amended provision, and

(b) the approval or consent could be given under the substituted or amended provision,

the approval or consent continues to have effect under the substituted or amended provision.

Applications pending under certain substituted or amended provisions

11. If—

(a) an application has been made for an authorisation under a provision that is substituted or amended by a provision of Schedule 3 to this Act before the commencement of the substituted or amended provision, and

(b) the application could be made under the substituted or amended provision, the application has effect as if it had been made under the substituted or amended provision.

Obligations under substituted or amended provisions

12. If—

(a) a person was under an obligation to comply with a provision substituted or amended by Schedule 3 to this Act immediately before the commencement of the substituted or amended provision, and

(b) the substituted or amended provision provides for the imposition of a similar obligation,

the obligation continues to subsist under the substituted or amended provision.

Saving for certain offences against the Consumer Credit Act 1995

12A. An offence alleged to have been committed under section 12 of the Consumer Credit Act 1995 before the commencement of item 2 of Part 12 of Schedule 3 is to be prosecuted, tried and determined under that section as in force before that commencement.

Amendments to Investor Compensation Act 1998 to apply to pending applications

13. The amendments made to the Investor Compensation Act 1998 by Part 15 of Schedule 3 to this Act apply to and in respect of applications for payments made under that Act and not disposed of before those amendments took effect.

Transfer of employment to Financial Services Ombudsman's Bureau of certain persons employed in voluntary schemes

14. (1) The Minister for Finance may, by order notified in Iris Oifigiúil, transfer the employment of persons employed in a voluntary scheme to the Financial Services Ombudsman's Bureau subject to such conditions (conditions as to pay and allowances, leave and superannuation) as are specified in the order.

(2) A person's employment may be transferred under subparagraph (1) only with the person's consent.

(3) In this paragraph, “voluntary scheme” means a scheme that, before the commencement of Chapter 3 of Part VIIB of the Central Bank Act 1942 (as inserted by section 16 of this Act), provided for the mediation, investigation or adjudication of consumer complaints against financial service providers.

Power to make regulations to deal with savings and transitional issues

15. (1) The Minister for Finance may make regulations containing provisions of a savings or transitional nature consequential on the enactment of this Act.

(2) Regulations made under this paragraph may provide for any such savings or transitional provision to come into operation on the date of passing of this Act or a later day.

(3) To the extent to which regulations provide for any such savings or transitional provision to come into operation on and from a day that is earlier than the date on which the regulations are notified in Iris Oifigiúil, the provision does not operate—

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before that date of notification, or

(b) to impose a liability on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before that date.

Central Bank and Financial Services Authority of Ireland Act 2004

Statutory Text (5 Articles)

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