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S.I. No. 349/2016 - European Union (Market Abuse) Regulations 2016.

S.I. No. 349/2016 - European Union (Market Abuse) Regulations 2016. Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English

Article 14

or 15 of the Market Abuse Regulation, €5,000,000, (ii)

Article 16

or 17 of the Market Abuse Regulation, €1,000,000, or (iii)

Article 18, 19 or 20 of the Market Abuse Regulation, €500,000; (l) subject to Regulation 47

(2), where the assessee is a legal person, a direction to pay to the Bank a monetary penalty not exceeding— (i)

Article 14

or 15 of the Market Abuse Regulation, €15,000,000 or 15 per cent of the total annual turnover of the legal person according to the last available accounts approved by the management body, (ii)

Article 16

or 17 of the Market Abuse Regulation, €2,500,000 or 2 per cent of the total annual turnover of the legal person according to the last available accounts approved by the management body, or (iii)

Article 18, 19 or 20 of the Market Abuse Regulation, €1,000,000.

(2)For the purposes of paragraph
(1)(l)(
  1. i)and (ii), where a body corporate that is a parent undertaking or a subsidiary undertaking which is required to prepare consolidated financial statements pursuant to Directive 2013/34/EU, the relevant total annual turnover shall be— (
  2. a)the total annual turnover, or (
  3. b)the corresponding type of income in accordance with— (
  4. i)in the case of a bank, Council Directive 86/635/EEC, and (
  5. ii)in the case of an insurance company, Council Directive 91/674/EEC, according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking.
(3)In this Regulation— (
  1. i)“Directive 2013/34/EU”means Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC5 , (
  2. ii)“Directive 86/635/EEC”means Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions6 , and (iii) “Directive 91/674/EEC”means Council Directive 91/674/EEC of 19 December 1991 on the annual accounts and consolidated accounts of insurance undertakings7 . Exercise of supervisory powers and imposition of sanctions 42. The assessor, when determining the appropriate sanction or sanctions under Regulation 35
(8)(c), shall take into account all relevant circumstances including, where appropriate: (
  1. a)the gravity and duration of the prescribed contravention; (
  2. b)the degree of responsibility of the assessee for the prescribed contravention; (
  3. c)the financial strength of the assessee, as indicated, for example, by total turnover where the assessee is a body corporate or unincorporated body, or by annual income where the assessee is a natural person; (
  4. d)the importance of the profits gained or losses avoided by the assessee, insofar as they can be determined; (
  5. e)the level of cooperation of the assessee with the Bank and assessor, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by the assessee; (
  6. f)previous prescribed contraventions by the assessee; (
  7. g)measures taken by the assessee to prevent repetition of any prescribed contravention. Power to correct assessments 43.
(1)Where the assessor or the Bank is satisfied that there is an obvious error in the text of an assessment, the assessor or the Bank, as the case may be, may alter the text of the assessment to remove the error.
(2)Where the text of an assessment is altered under paragraph
(1), the text as so altered shall be taken to be the decision of the Bank under Regulation 35
(10).
(3)In paragraph
(1), “obvious error”, in relation to the text of an assessment, includes- (
  1. a)a clerical or typographical error, (
  2. b)an error arising from an accidental slip or omission, or (
  3. c)a defect of form. When specified sanctions take effect 44.
(1)Where— (
  1. a)no appeal under Regulation 40 against the adverse assessment (including the specified sanctions) is lodged with the Court within the period for lodging the appeal, or (
  2. b)an appeal under Regulation 40 against the adverse assessment (including the specified sanctions) has been lodged with the Court within the period for lodging the appeal but is withdrawn or abandoned, then the specified sanctions pursuant to Regulation 41
(1)(a) to (l), as confirmed or varied in the order, if any, obtained under Regulation 45
(2)(a), shall take effect on the date of that order or such other date as the Court may specify in that order.
(2)Where an appeal under Regulation 40 against the adverse assessment is lodged with the Court within the period for lodging the appeal, then the specified sanctions pursuant to Regulation 41
(1)(a) to (l), as confirmed or varied in the order, if any, obtained under Regulation 40
(4)(a), shall take effect on the date of that order or such other date as the Court may specify in that order. Enforcement of adverse assessment (including specified sanctions) 45.
(1)Where— (
  1. a)no appeal under Regulation 40 against the adverse assessment is lodged with the Court within the period for lodging the appeal, or (
  2. b)an appeal under Regulation 40 against the adverse assessment has been lodged with the Court within the period for lodging the appeal but is withdrawn or abandoned, then the Bank may apply to the Court for an order confirming the adverse assessment (including the specified sanctions).
(2)The Court shall determine an application under paragraph
(1)by making— (
  1. a)an order confirming, varying or setting aside the adverse assessment (including the specified sanctions), whether in whole or in part, or (
  2. b)an order remitting the case to be decided again by the Bank in accordance with the directions of the Court.
(3)The Court shall not hear an application under paragraph
(1)unless— (
  1. a)the assessee appears at the hearing as respondent to the application, or (
  2. b)if the assessee does not so appear, the Court is satisfied that a copy of the application has been served on the assessee.
(4)If the Court is satisfied that it is desirable that the whole or part of proceedings relating to an application under paragraph
(1)be heard otherwise than in public because of the nature or the circumstances of the case or having regard to the interests of justice then the Court may make an order that the proceedings shall, in whole or part, be heard otherwise than in public.
(5)The Court may, on an application under paragraph
(1), make such interim or interlocutory orders as the Court considers necessary in the circumstances.
(6)The determination of the Court on the hearing of an application under paragraph
(1)shall be final, except that the Bank or the respondent, if any, may apply to the Court of Appeal to review the determination on a question of law.
(7)For the avoidance of doubt, it is declared that no variation of an adverse assessment under paragraph
(2)(a) may provide for the imposition of a sanction on the assessee that is not a sanction referred to in Regulation 41
(1)(a) to (l). Publication of decisions to impose specified sanctions 46.
(1)Subject to paragraph
(3), immediately after an assessee has been informed of a decision to impose on the assessee specified sanctions under Regulation 41
(1)(
  1. a)to (l), the Bank shall publish the decision on its website and the publication shall include— (
  2. a)information relating to the type and nature of the prescribed contravention, and (
  3. b)the identity of the assessee.
(2)Where the Bank considers that the disclosure of the identity of an assessee in accordance with paragraph
(1)(a), or the personal data of an assessee where it is a natural person, would be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data, or would jeopardise an ongoing investigation or the stability of the financial markets, it shall either— (
  1. a)defer publication of the specified sanction or the identity of the assessee until the reasons for that deferral cease to exist, (
  2. b)publish the decision on an anonymous basis, provided such publication ensures the effective protection of the personal data concerned, or (
  3. c)not publish the decision where the Bank is of the opinion that publication in accordance with subparagraph (
  4. a)or (
  5. b)would be insufficient to ensure— (
  6. i)that the stability of financial markets is not jeopardised, or (
  7. ii)the proportionality of the publication of the decision where the sanctions concerned are deemed to be of a minor nature.
(3)Where the Bank decides to publish a decision on an anonymous basis in accordance with paragraph
(2)(b), it may postpone the publication of the relevant data for a reasonable period of time where it is foreseeable that the reasons for anonymous publication will cease to exist during that period.
(4)Where an adverse assessment is confirmed, varied or set aside by an order of the Court under Regulation 40
(4)(a) or 45
(2)(a), or the case is remitted to be decided by the Bank under Regulation 40
(4)(b) or 45
(2)(b), the Bank shall publish on its website information relating to such orders and any subsequent decision of the Bank relating to the case.
(5)The Bank shall ensure that a decision published in accordance with paragraph
(1)shall remain accessible on its website for a period of not less than 5 years after its publication, provided that any personal data contained in such publication shall be kept on the website for such period as is necessary in accordance with the Data Protection Acts 1998 and 2003. Person not liable to be penalised twice for same contravention 47.
(1)Where— (a) a sanction referred to in Regulation 41
(1)(j), (
  1. k)or (
  2. l)has been or is to be imposed on an assessee by virtue of an order obtained under Regulation 40
(4)(a) or 45
(2)(a), and (b) the acts that constitute the prescribed contravention to which the sanction relates also constitute an offence under a law of the State, then the assessee shall not, in respect of those acts, be liable to be prosecuted or punished for that offence under that law.
(2)A sanction referred to in Regulation 41
(1)(j), (
  1. k)or (
  2. l)in respect of a prescribed contravention shall not be imposed on an assessee where— (
  3. a)the assessee has been found guilty or not guilty of having committed— (
  4. i)an offence under a provision of these Regulations, or (
  5. ii)an offence referred to in section 1368 of the Companies Act 2014 , and (
  6. b)all or some of the acts constituting that offence also constitute the prescribed contravention. Person not to be concerned in management of regulated financial service provider while disqualified 48. A regulated financial service provider shall ensure that a person shall not be concerned in the management of, or have a qualifying holding in, the financial service provider while the person is subject to a sanction referred to in Regulation 41
(1)(f), (
  1. g)or (
  2. h)that is in force. Power of the Bank to resolve certain contraventions etc. 49.
(1)Where the Bank has reason to suspect that a person (“relevant party”) is committing or has committed a prescribed contravention, it may enter into an agreement in writing with the relevant party to resolve the matter (including at any time before an assessment, if any, has been issued in respect of the relevant party).
(2)An agreement entered into under paragraph
(1)— (
  1. a)is binding on the Bank and the relevant party, and (
  2. b)may include terms under which the relevant party accepts the imposition of sanctions.
(3)An agreement entered into under paragraph
(1)may be enforced by the Bank or the relevant party in a court of competent jurisdiction. False etc. information 50. A person who— (
  1. a)gives the Bank a notification pursuant to a requirement under the Market Abuse Regulation, or (
  2. b)gives the assessor information pursuant to a requirement under Part 5, that the person knows is false or misleading in a material particular, or that the person does not believe to be true, shall be guilty of an offence and liable upon summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both. PART 6 FINAL PROVISIONS Amendment of Central Bank Act 1942 51. The Central Bank Act 1942 (No. 22 of 1942) is amended as follows: (
  3. a)in section 2(2A) by the substitution of the following paragraphs for paragraphs (
  4. w)and (
  5. x)(inserted by Regulation 7 of the European Union (Requirements for Credit Transfers and Direct Debits in Euro) (Amendment) Regulations 2016 ( S.I. No. 204 of 2016 )): “(
  6. w)the SRM Regulation; (
  7. x)Regulation (EU) No. 260/2012 of the European Parliament and of the Council of 14 March 20128 ; (
  8. y)Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC9 ; (
  9. z)Commission Delegated Regulation (EU) 2016/522 of 17 December 201510 ; (
  10. aa)Commission Delegated Regulation (EU) 2016/908 of 26 February 201611 ; (
  11. ab)Commission Delegated Regulation (EU) 2016/909 of 1 March 201612 ; (
  12. ac)Commission Delegated Regulation (EU) 2016/957 of 9 March 201613 ; (
  13. ad)Commission Delegated Regulation (EU) 2016/958 of 9 March 201614 ; (
  14. ae)Commission Delegated Regulation (EU) 2016/523 of 10 March 201615 ; (
  15. af)Commission Delegated Regulation (EU) 2016/347 of 10 March 201616 ; (
  16. ag)Commission Delegated Regulation (EU) 2016/378 of 11 March 201617 ; (
  17. ah)Commission Delegated Regulation (EU) 2016/959 of 17 May 201618 ; (
  18. ai)Commission Delegated Regulation (EU) 2016/960 of 17 May 201619 ; (
  19. aj)Commission Delegated Regulation (EU) 2016/1052 of 8 March 201620 ; (
  20. ak)Commission Implementing Regulation (EU) 2016/1055 of 29 June 201621 ; (
  21. b)in section 33AK
(5)— (
  1. i)in paragraph (
  2. ax)by the substitution of “actuaries, or” for “actuaries.”, (
  3. ii)in subparagraph (ay)(
  4. vi)by the substitution of “other Member States, or” for “other Member States.”, and (iii) by the insertion of the following paragraph: “(
  5. az)to the Workplace Relations Commission in accordance with Part 3 of the European Communities (Market Abuse) Regulations 2016 ( S.I. No.349 of 2016 ).”; (
  6. c)in section 33AK
(10)by the substitution of the following paragraph for paragraphs (
  1. f)and (
  2. g)in the definition of “supervisory EU legal acts”: “(
  3. f)Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, (
  4. g)Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) and Commission Implementing Directive (EU) 2015/2392 of 17 December 2015 on Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards reporting to competent authorities of actual or potential infringements of that Regulation,”; (
  5. d)in section 33AN— (
  6. i)by the substitution of the following for “or Title II of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 201216” in the definition of “designated enactment” “, Title II of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 201216 or Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014;”, and (
  7. ii)by the substitution of the following for “Market Abuse (Directive 2003/6/EC) Regulations 2005 ( S.I. No. 342 of 2005 )” in the definition of “designated statutory instrument”: “European Union (Market Abuse) Regulations 2016 ( S.I. No. 349 of 2016 )”; (
  8. e)in Part 2 of Schedule 2 by the substitution of the following for item 41: “ 41 S.I. No. 349 of 2016 European Union (Market Abuse) Regulations 2016 The whole instrument .”. Amendment of Communications (Retention of Data) Act 2011 52. The Communications (Retention of Data) Act 2011 is amended by the insertion of the following in Schedule 1: “6. An offence under Regulation 5 or 7 of the European Union (Market Abuse) Regulations 2016.”. Amendment of European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006 53. The European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006 ( S.I. No. 255 of 2006 ) are amended by the substitution of the following for subparagraph (
  9. a)of Regulation 9
(4): “(a) Regulation (EU) 596/2014 of the European Parliament and of the Council of 16 April 2014,” Repeal and revocation
  1. The Market Abuse (Directive 2003/6/EC) Regulations 2005 ( S.I. No. 342 of 2005 ) are revoked. GIVEN under my Official Seal, 30 June
  2. MICHAEL NOONAN, Minister for Finance. 1 OJ L 173, 12.6.2014, p.
  3. 2 OJ L 173, 12.6.2014, p.
  4. 3 OJ L 332, 18.12.2015, p.
  5. 4 OJ L 302, 18.11.2010, p.
  6. 5 OJ 182, 29.6.2013, p.
  7. 6 OJ 372, 31.12.1986, p.
  8. 7 OJ 374, 31.12.1991, p.
  9. 8 OJ L 94, 30.03.2012, p.
  10. 9 OJ L 173, 12.6.2014, p.
  11. 10 OJ L 88, 5.4.2016, p.
  12. 11 OJ L 153, 10.6.2016, p.
  13. 12 OJ L 153, 10.6.2016, p.
  14. 13 OJ L 160, 17.6.2016, p.
  15. 14 OJ L 160, 17.6.2016, p.
  16. 15 OJ L 88, 5.4.2016, p.
  17. 16 OJ L 65, 11.3.2016, p.
  18. 17 OJ L 72, 17.3.2016, p.
  19. 18 OJ L 160, 17.6.2016, p.
  20. 19 OJ L 160, 17.6.2016, p.
  21. 20 OJ L 173, 30.6.2016, p.
  22. 21 OJ L 173, 30.6.2016, p.
  23. Privacy Statement Accessibility European Legislation Identifier (PDF) Open Data License Ráiteas Príobháideachais Inrochtaineacht Aitheantóir Eorpach Reachtaíochta (ELI) Ceadúnas Sonraí Oscailte Liosta Fianán © Government of Ireland. Oireachtas Copyright Material is reproduced with the permission of the Houses of the Oireachtas © Rialtas na hÉireann. Atáirgtear ábhar faoi Chóipcheart le cead ó Thithe an Oireachtais

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