Central Bank and Financial Services Authority of Ireland Act 2004

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PART 1

Preliminary Section 1.

Short title and commencement.

PART 2

Amendment of Central Bank Act 1942 2.

Amendment of section 2 of Central Bank Act 1942 (Interpretation).

3.

Insertion of new section 2A into Central Bank Act 1942.

4.

Substitution of section 6B of Central Bank Act 1942.

5.

Amendment of section 20 of Central Bank Act 1942 (Prohibition of the Governor holding shares in a bank).

6.

New section 33SA inserted into Central Bank Act 1942.

7.

Amendment of section 33AC of Central Bank Act 1942 (Registrar to prepare annual report).

8.

Amendment of section 33C of Central Bank Act 1942 (Functions and powers of Regulatory Authority).

9.

Amendment of section 33AK of Central Bank Act 1942 (Disclosure of information).

10.

New Part IIIC inserted into Central Bank Act 1942.

11.

Amendment of section 57A of Central Bank Act 1942 (Interpretation Part VIIA and Schedule 5).

12.

Amendment of section 57G of Central Bank Act 1942 (Jurisdiction and powers of the Appeals Tribunal).

13.

Amendment of section 57R of Central Bank Act 1942 (Operation and implementation of appealed decision pending determination of appeal).

14.

Amendment of section 57Z of Central Bank Act 1942 (What decisions the Appeals Tribunal can make in determining an appeal).

15.

Amendment of section 57AK of Central Bank Act 1942 (Right of appeal to High Court).

16.

New Part VIIB inserted into Central Bank Act 1942.

17.

New Part VIIC inserted into Central Bank Act 1942.

18.

Amendment of section 61E of Central Bank Act 1942.

19.

Insertion of new section 61G into Central Bank Act 1942.

20.

Amendment of Schedule 2 to Central Bank Act 1942 (Enactments and regulations under which Regulatory Authority is to perform functions of the Bank).

21.

Amendment of Schedule 5 to Central Bank Act 1942 (Provisions applicable to members of the Appeals Tribunal).

22.

Insertion into Central Bank Act 1942 of new Schedules 6 and 7.

23.

Insertion into Central Bank Act 1942 of new Schedule 8.

PART 3

Amendment of Central Bank Act 1997 24.

Amendment of section 2 of Central Bank Act 1997 (Interpretation).

25.

Amendment of section 19 of Central Bank Act 1997 (Prohibition of revocation of certain payments).

26.

Substitution of Part IV of Central Bank Act 1997.

27.

Substitution of Part V of Central Bank Act 1997.

28.

Amendment of section 53 of Central Bank Act 1997 (Application of section 47 of Act of 1989).

29.

Amendment of section 75 of Central Bank Act 1997 (Powers of inspection).

30.

Amendment of section 76 of Central Bank Act 1997 (Search and seizure).

31.

Amendment of section 77 of Central Bank Act 1997 (Examination by Comptroller and Auditor General).

32.

Amendment of section 84 of Central Bank Act 1997 (Representative offices).

PART 4

Amendment of Other Legislation 33.

Miscellaneous amendments to other Acts administered by the Bank.

34.

Amendment of European Communities Regulations administered by the Bank.

35.

Savings and transitional provisions.

SCHEDULE 1 Amendment of Acts Consequential on Insertion into Central Bank Act 1942 of Part IIIC SCHEDULE 2 Amendment of European Communities Regulations Consequential on Insertion of Part IIIC of Central Bank Act 1942 SCHEDULE 3 Miscellaneous Amendments to Other Acts Administered by the Bank SCHEDULE 4 Miscellaneous Amendments to Other European Communities Regulations Administered by the Bank SCHEDULE 5 Savings and Transitional Provisions Acts Referred to Asset Covered Securities Act 2001 2001, No. 47 Betting Act 1931 1931, No. 27 Building Societies Act 1989 1989, No. 17 Central Bank Act 1942 1942, No. 22 Central Bank Act 1971 1971, No. 24 Central Bank Act 1989 1989, No. 16 Central Bank Act 1997 1997, No. 8 Central Bank Act 1998 1998, No. 2 Central Bank Acts Central Bank and Financial Services Authority of Ireland Act 2003 2003, No. 12 Companies Act 1963 1963, No. 33 Companies Act 1990 1990, No. 33 Companies Acts Consumer Credit Act 1995 1995, No. 24 Courts Act 1981 1981, No. 11 Credit Union Act 1997 1997, No. 15 Criminal Justice Act 1994 1994, No. 15 Currency Act 1927 1927, No. 32 European Communities Act 1972 1972, No. 27 Gaming and Lotteries Act 1956 1956, No. 2 Insurance Act 1936 1936, No. 45 Insurance Act 1964 1964, No. 18 Insurance Act 1989 1989, No. 3 Insurance Act 2000 2000, No. 42 Insurance Acts 1909-2002 Insurance (Miscellaneous Provisions) Act 1985 1985, No. 8 Insurance (No. 2) Act 1983 1983, No. 29 Investment Intermediaries Act 1995 1995, No. 11 Investment Limited Partnerships Act 1994 1994, No. 24 Investor Compensation Act 1998 1998, No. 37 Licensing Acts 1833 to 1994 Netting of Financial Contracts Act 1995 1995, No. 25 Partnership Act 1890 53 & 54 Vic., c 59 Pawnbrokers Act 1964 1964, No. 31 Pensions Acts Pensions Act 1990 1990, No. 25 Petty Sessions (Ireland) Act 1851 14 & 15 Vic., c 93 Stock Exchange Act 1995 1995, No. 9 Trustee Savings Banks Act 1989 1989, No. 21 Trustee Savings Banks Acts 1863 to 1979 Unit Trusts Act 1990 1990, No. 37 Number 21 of 2004 CENTRAL BANK AND FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004 AN ACT TO AMEND THE CENTRAL BANK ACT 1942 FOR THE PURPOSES OF ESTABLISHING THE FINANCIAL SERVICES OMBUDSMAN'S BUREAU AND PRESCRIBING THE FUNCTIONS AND POWERS OF THAT OMBUDSMAN, PROVIDING FOR THE ESTABLISHMENT OF CONSULTATIVE PANELS TO ADVISE THE IRISH FINANCIAL SERVICES REGULATORY AUTHORITY ON CERTAIN MATTERS; TO AMEND THE CENTRAL BANK ACT 1997 FOR THE PURPOSES OF MAKING FURTHER PROVISION FOR AUDITING THE ACCOUNTS OF FINANCIAL SERVICE PROVIDERS AND PROVIDING FOR THE REGULATION OF MONEY TRANSMISSION BUSINESSES; AND TO MAKE MISCELLANEOUS AMENDMENTS TO CERTAIN OTHER ACTS AND STATUTORY INSTRUMENTS RELATING TO THE PROVISION OF FINANCIAL SERVICES.

[5th July, 2004.] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1

Preliminary Short title and commencement.

1.—(1) This Act may be cited as the Central Bank and Financial Services Authority of Ireland Act 2004.

PART 2

Amendment of Central Bank Act 1942 Amendment of section 2 of Central Bank Act 1942 (Interpretation).

2.—

Section 2

of the Central Bank Act 1942 (as substituted by section 3 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended— (a) by inserting the following definition after the definition of “Appeals Tribunal” in subsection (1): “ ‘associated entity’ in relation to a financial service provider, means— (a) a holding company of the financial service provider, or (b) a subsidiary company of the financial service provider, or (c) a company that is a subsidiary of a body corporate, if the financial service provider is also a subsidiary of the body, but neither company is a subsidiary of the other, or (d) if a financial service provider is a company, any other body corporate that is not a subsidiary of the company but in respect of which the company is beneficially entitled to more than 20 per cent of the nominal value of either— (i) the allotted share capital, or (ii) the shares carrying voting rights (other than voting rights which arise only in specified circumstances) in that other body corporate, or (e) a partnership or joint venture in which the financial service provider has a financial interest;”; (b) by inserting the following definition after the definition of “Currency Act 1927” in subsection (1): “ ‘Deputy Financial Services Ombudsman’ means the person holding office under section 57BL;”; (c) by inserting the following definition after the definition of “Director”: “ ‘EEA country’ means a country that is a member of the European Economic Area;”; (d) by inserting the following definitions after the definition of “financial services” in subsection (1): “ ‘Financial Services Ombudsman’ means the person holding office under section 57BJ or acting as Financial Services Ombudsman under section 57BM; ‘financial service provider’ means a person who carries on a business of providing one or more financial services;”; (e) by inserting the following definition after the definition of “Governor” in subsection (1): “ ‘holding company’ means a company that has one or more subsidiary companies;”; (f) by inserting the following after the definition of “power” in subsection (1): “ ‘publication’, in relation to a report or other document, includes publishing the report or document in an accessible form on an Internet website;”; (g) by inserting the following definition after the definition of “record” in subsection (1): “ ‘regulated financial service provider’ means— (a) a financial service provider whose business is subject to regulation by the Bank or the Regulatory Authority under this Act or under a designated enactment or a designated statutory instrument, or

(b) a financial service provider whose business is subject to regulation by an authority that performs functions in an EEA country that are comparable to the functions performed by the Bank or the Regulatory Authority under this Act or under a designated enactment or designated statutory instrument, or (c) in relation to Part VIIB only, any other financial service provider of a class specified in the regulations for the purposes of this paragraph;”; (h) in the definition of “Rome Treaty” in subsection (1), by substituting “1992;” for “1992.”; (i) by inserting the following definitions after the definition of “Rome Treaty” in subsection (1): “ ‘subsidiary company’ has the meaning given by section 2A; ‘voting rights’ means— (a) in relation to a company that has a share capital, the rights conferred on shareholders by virtue of their shares, or (b) in relation to a company that does not have a share capital, the rights conferred on members, to vote at general meetings of the company on all, or substantially all, matters.”; (j) by inserting the following subsections after subsection (3): “(4) For the purposes of this Act, a person is concerned in the management of a body corporate, or a firm, that is a regulated financial service provider if the person is in any way involved in directing, managing or administering the affairs of the body or firm.

Insertion of new section 2A into Central Bank Act 1942.

3.—The Central Bank Act 1942 is amended by inserting the following section after section 2: “Definition of ‘subsidiary company’.

2A.—(1) For the purposes of this Act, a company is a subsidiary of another company if (but only if)— (a) that other company— (i) holds a majority of the shareholders' or members' voting rights in the first-mentioned company, or (ii) is a shareholder or member of that company and controls the composition of its board of directors, or (iii) is a shareholder or member of that company and controls alone, in accordance with an agreement with other shareholders or members, a majority of the shareholders' or members' voting rights, or (b) that other company has the right to exercise a dominant influence over the first-mentioned company— (i) because of provisions contained in its memorandum or articles, or (ii) because of a control contract, or (c) that other company has a participating interest in the first-mentioned company and— (i) that other company actually exercises a dominant influence over the first-mentioned company, or (ii) that other company and the first-mentioned company are managed on a unified basis, or (d) the undertaking is a subsidiary of a company that is that other's subsidiary company.

Substitution of section 6B of Central Bank Act 1942.

4.—The Central Bank Act 1942 is amended by substituting the following section for section 6B (as inserted by section 7 of the Central Bank and Financial Services Authority of Ireland Act 2003 ): “Offices of the Bank.

6B.—(1) For the purpose of enabling the Bank to perform its functions, the Board— (a) may acquire and hold land, and (b) may build, establish, equip and maintain offices and other premises, in such places, whether in the State or elsewhere, as it considers appropriate.

Amendment of section 20 of Central Bank Act 1942 (Prohibition of the Governor holding shares in a bank).

5.—

Section 20

of the Central Bank Act 1942 is amended— (a) by substituting “financial institution” for “bank” wherever it occurs, (b) by inserting the following subsection after subsection (4): “(4A) This section does not prohibit the Governor from— (a) entering into a policy of insurance, or (b) purchasing units of, or participating in, a collective investment scheme whose funds are invested in bonds or equities generally (including the bonds or shares of a financial institution), or (c) establishing and maintaining an ordinary savings account with a building society or a friendly society.”; (c) by substituting the following subsection for subsection (5): “(5) In this section— ‘bank’ includes a bank incorporated outside the State as well as a bank incorporated in the State; ‘financial institution’ includes a credit institution and an insurance undertaking; ‘shares’, in relation to a bank, include stock, shares, debentures, debenture stock, bonds and other securities of the bank.”.

New section 33SA inserted into Central Bank Act 1942.

6.—The Central Bank Act 1942 is amended by inserting the following section after section 33S (as inserted by section 26 of the Central Bank and Financial Services Authority of Ireland Act 2003 ): “Supplementary powers of Consumer Director with respect to carrying out the responsibilities imposed under section 33S.

33SA.—(1) To enable the Consumer Director to carry out the responsibilities imposed by section 33S, that Director may— (a) undertake studies, analyses and surveys with respect to the provision of relevant financial services to consumers, and (b) collect and compile information for that purpose, and (c) publish the results of any such studies, analyses or surveys.

Amendment of section 33AC of Central Bank Act 1942 (Registrar to prepare annual report).

7.—Section 33AC of the Central Bank Act 1942 (as inserted by section 26 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended in subsection (1) by substituting “within 9 months after the end of each financial year” for “not later than the end of September in each year”.

Amendment of section 33C of Central Bank Act 1942 (Functions and powers of Regulatory Authority).

8.—Section 33C of the Central Bank Act 1942 (as inserted by section 26 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended by substituting the following subsections for subsection (9): “(9) If a matter relating to the financial stability of the State's financial system arises in connection with the performance or exercise by the Regulatory Authority of its functions or powers, that Authority shall consult the Governor on the matter. (9A) The Regulatory Authority may, if it considers it prudent to do so, give a written report to the Minister on any matter of the kind referred to in subsection (9), but may act on such a matter only with the agreement of the Governor. (9B) For the purposes of subsections (9) and (9A), ‘matter’ includes (but is not limited to) the issue, revocation and suspension of a licence or other authority.”.

Amendment of section 33AK of Central Bank Act 1942 (Disclosure of information).

9.—Section 33AK of the Central Bank Act 1942 (as inserted by section 26 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended— (a) in subsection (5)(aj), by substituting “functions, or” for “functions.”, and (b) by inserting after subsection (5)(aj)— “(ak) to the Financial Services Ombudsman that is required for the performance of that Ombudsman's functions.”.

New Part IIIC inserted into Central Bank Act 1942.

10.—(1) The Central Bank Act 1942 is amended by inserting the following Part after Part IIIB (as inserted by section 26 of the Central Bank and Financial Services Authority of Ireland Act 2003 ): “PART IIIC Enforcement of Designated Enactments and Designated Statutory Instruments

CHAPTER 1

Interpretation Interpretation (Part IIIC).

33AN.—In this Part— ‘contravene’ includes fail to comply, and also includes— (a) attempting to contravene, and (b) aiding and abetting and counselling and procuring a person to commit a contravention, and (c) inducing, or attempting to induce, a person (whether by threats or promises or otherwise) to commit a contravention, and (d) being (directly or indirectly) knowingly concerned in, or a party to, a contravention, and (e) conspiring with others to commit a contravention; ‘decision of the Regulatory Authority’ means— (a) in relation to an inquiry held by the Regulatory Authority under section 33AO, a finding made by that Authority in accordance with section 33AQ and any decision of that Authority imposing a sanction under that section in consequence of the finding, or (b) any decision of that Authority imposing a sanction under section 33AR; ‘disqualification direction’ means a direction given under section 33AQ or 33AR disqualifying a specified person from being concerned in the management of a regulated financial service provider; ‘inquiry’ means an inquiry held under section 33AO or section 33AR; ‘prescribed contravention’ means a contravention of— (a) a provision of a designated enactment or designated statutory instrument, or (b) a code made, or a direction given, under such a provision, or (c) any condition or requirement imposed under a provision of a designated enactment, designated statutory instrument, code or direction, or (d) any obligation imposed on any person by this Part or imposed by the Regulatory Authority pursuant to a power exercised under this Part; ‘notify’ means notify in writing.

CHAPTER 2

Power of Regulatory Authority to hold inquiries Regulatory Authority may hold inquiry into conduct of regulated financial service provider or person concerned in its management.

33AO.—(1) Whenever the Regulatory Authority suspects on reasonable grounds that a regulated financial service provider is committing or has committed a prescribed contravention, it may hold an inquiry to determine whether or not the financial service provider is committing or has committed the contravention.

Regulatory Authority to give notice to regulated financial service provider with respect to inquiry.

33AP.—(1) Before holding an inquiry under section 33AO, the Regulatory Authority shall give notice in writing of the proposed inquiry to the financial service provider or other person concerned.

What decisions Regulatory Authority can make at conclusion of inquiry held under section 33AO.

33AQ.—(1) At the conclusion of an inquiry held under section 33AO, the Regulatory Authority shall make a finding as to whether the financial service provider concerned is committing or has committed the prescribed contravention to which the inquiry relates.

Alternative procedure when commission of, or participation in, prescribed contravention is acknowledged.

33AR.—(1) If, in a case where the Regulatory Authority suspects on reasonable grounds that a regulated financial service provider is committing or has committed a prescribed contravention, the financial service provider acknowledges that the financial service provider is committing or has committed the contravention, the Regulatory Authority may— (a) with the consent of the financial service provider, dispense with an inquiry and impose on the financial service provider any sanction that it is empowered to impose on regulated financial service providers under section 33AQ, or (b) hold an inquiry to determine what sanction (if any) should be imposed on the financial service provider in accordance with that section.

Limitations on imposing monetary penalties.

33AS.—(1) If the Regulatory Authority decides to impose a monetary penalty on a regulated financial service provider under section 33AQ or 33AR, it may not impose an amount that would be likely to cause the financial service provider to cease business.

Financial service provider etc. not to be liable to be penalised twice for same contravention.

33AT.—(1) If the Regulatory Authority imposes a monetary penalty in accordance with section 33AQ or 33AR and the prescribed contravention in respect of which the sanction is imposed is an offence under a law of the State, the financial service provider or other person concerned is not liable to be prosecuted or punished for the offence under that law.

Person not to be concerned in management of regulated financial service provider while disqualified.

33AU.—A regulated financial service provider shall ensure that a person is not permitted to be concerned in the management of the financial service provider while the person is subject to a disqualification direction that is in force under this Part.

Power of Regulatory Authority to resolve suspected contraventions, etc.

33AV.—(1) If the Regulatory Authority suspects on reasonable grounds that— (a) a regulated financial service provider is committing or has committed a prescribed contravention, or (b) a person concerned in the management of the financial service provider is participating or has participated in such a contravention, it may enter into an agreement in writing with the financial service provider or person to resolve the matter.

When decisions of the Regulatory Authority under this Part take effect.

33AW.—(1) A decision of the Regulatory Authority imposing a caution or reprimand takes effect— (a) if no appeal against the decision is lodged with the Appeals Tribunal within the period allowed for lodging such an appeal—at the end of that period, or (b) if such an appeal is lodged with the Appeals Tribunal within that period and the decision is confirmed by that Tribunal (with or without variation) — at the time when the period allowed for lodging an appeal with the High Court against that decision has ended, no appeal having been lodged within that period, or (c) if such an appeal is lodged with the Appeals Tribunal within that period but is later withdrawn — at the time of the withdrawal of the appeal, or (d) if an appeal is made to the High Court against the determination of the Appeals Tribunal in respect of the decision and, on the hearing of the appeal by that Court, that determination is confirmed (with or without variation) — at the time of confirmation of that determination, or (e) if an appeal is made to the High Court against the determination of the Appeals Tribunal but is later withdrawn — at the time of the withdrawal of the appeal.

Decision of Regulatory Authority to be appealable.

33AX.—A decision of the Regulatory Authority made at the conclusion of an inquiry held under section 33AO or section 33AR is an appealable decision for the purposes of Part VIIA.

CHAPTER 3

Conduct of inquiries Proceedings at inquiries.

33AY.—(1) The Regulatory Authority shall conduct an inquiry with as little formality and technicality, and with as much expedition, as a proper consideration of the matters before it will allow.

Inquiry normally to be held in public.

33AZ.—(1) Except as provided by subsection (2), the Regulatory Authority shall hold its inquiries in public.

Power to summon witnesses and take evidence.

33BA.—(1) At an inquiry, the Regulatory Authority may, in writing— (a) summons a person to appear before the inquiry to give evidence, to produce specified documents, or to do both, and (b) require the person to attend from day to day unless excused, or released from further attendance, by that Authority.

Regulatory Authority may refer to Court question of law arising at inquiry.

33BB.—(1) The Regulatory Authority may, on its own initiative or at the request of the financial service provider or other person concerned, refer to the Court for decision a question of law arising at an inquiry.

Regulatory Authority may publish its decisions.

33BC.—(1) If on the holding of an inquiry under section 33AO the Regulatory Authority has found that— (a) a regulated financial service provider is committing or has committed a prescribed contravention, or (b) a person concerned in the management of the financial service provider is participating or has participated in such a contravention, it shall publish the finding, and details of any sanction imposed in consequence of the finding, in such form and manner as it thinks appropriate.

Regulatory Authority may make guidelines with respect to the conduct of proceedings under this Part.

33BD.—(1) The Regulatory Authority may prescribe guidelines with respect to the conduct of inquiries under this Part, and may for that purpose, incorporate by reference any procedure prescribed by Rules of the Superior Courts as in force at a specified time or as in force from time to time.

Performance and exercise of functions and powers of Regulatory Authority under this Part.

33BE.—The Chief Executive, and such other officers of the Regulatory Authority and such employees of the Bank as the Regulatory Authority designates from time to time, are responsible for performing and exercising the functions and powers of the Regulatory Authority under this Part.

Limitation of period within which judicial review may be sought.

33BF.—An application for leave to apply for judicial review of a decision of the Regulatory Authority under this Part must be made— (a) within 2 months after the date on which notice of the decision was first notified to the financial service provider or the person concerned, or (b) if the High Court makes an order extending that period, within that extended period.”.

Amendment of section 57A of Central Bank Act 1942 (Interpretation Part VIIA and Schedule 5).

Amendment of section 57G of Central Bank Act 1942 (Jurisdiction and powers of the Appeals Tribunal).

12.—Section 57G of the Central Bank Act 1942 (as inserted by section 28 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended by inserting the following subsection after subsection (1): “(1A) A decision of the Regulatory Authority is not an appealable decision for the purposes of this Part if the Governor certifies in writing that the Governor has exercised the powers conferred by subsections (9) and (9A) of section 33C in relation to the decision, but instead a person who is dissatisfied with the decision may appeal to the High Court against the decision, within 28 days after the date of notification of the decision or within such extended period as that Court allows.”.

Amendment of section 57R of Central Bank Act 1942 (Operation and implementation of appealed decision pending determination of appeal).

13.—Section 57R of the Central Bank Act 1942 (as inserted by section 28 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended by inserting the following subsection after subsection (2): “(2A) Subsection (2) applies only to an appealable decision made under Part IIIC.”.

Amendment of section 57Z of Central Bank Act 1942 (What decisions the Appeals Tribunal can make in determining an appeal).

14.—Section 57Z of the Central Bank Act 1942 (as inserted by section 28 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended— (a) in subsection (2), by substituting the following paragraph for paragraph (d): “(d) remit the matter concerned for reconsideration by the Regulatory Authority, together with any recommendation or direction of the Appeals Tribunal as to what aspects of the matter should be reconsidered and, in the case of an appealable decision made under Part IIIC, set aside the decision.”; (b) by inserting the following subsection after subsection (2): “(2A) Paragraphs (b) and (c) of subsection (2) apply only to an appealable decision made under Part IIIC.”.

Amendment of section 57AK of Central Bank Act 1942 (Right of appeal to High Court).

15.—Section 57AK of the Central Bank Act 1942 (as inserted by section 28 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended by substituting the following subsection for subsection (3): “(3) An appeal under this section must be made within 28 days after the notification of the decision or within such extended period as that Court allows.”.

New Part VIIB inserted into Central Bank Act 1942.

16.—The Central Bank Act 1942 is amended by inserting the following Part after Part VIIA (as inserted by section 28 of the Central Bank and Financial Services Authority of Ireland Act 2003 ): “PART VIIB Financial Services Ombudsman

CHAPTER 1

Interpretation and objects of Part Definitions.

57BA.—In this Part— ‘Bureau’ means the Financial Services Ombudsman's Bureau; ‘Bureau staff member’ means a person appointed under section 57BN; ‘complaint’ means a complaint made by a consumer under this Part about the conduct of a regulated financial service provider; ‘conduct’ includes alleged conduct; ‘consumer’ means— (a) a natural person when not acting in the course of, or in connection with, carrying on a business, or (b) a person, or group of persons, of a class prescribed by Council regulations; ‘Council’ means the Financial Services Ombudsman Council established by section 57BC; ‘Council regulations’ means regulations made by the Council under section 57BF and in force; ‘eligible consumer’, in relation to a regulated financial service provider, means a consumer— (a) who is a customer of the financial service provider, or (b) to whom the financial service provider has offered to provide a financial service, or (c) who has sought the provision of a financial service from the financial service provider; ‘investigation’ means an investigation of a complaint; ‘parties’ in relation to a complaint, means the complainant, the regulated financial service provider against whom the complaint is made, and any other person who, in the opinion of the Financial Services Ombudsman, should be treated as a party to the complaint; ‘Pensions Ombudsman’ means the person holding or acting in the office of Pensions Ombudsman under section 128 of the Pensions Act 1990 .

Objects of this Part.

57BB.—The objects of this Part are as follows: (a) to establish the Financial Services Ombudsman as an independent officer— (i) to investigate, mediate and adjudicate complaints made in accordance with this Part about the conduct of regulated financial service providers involving the provision of a financial service, an offer to provide such a service or a failure or refusal to provide such a service, and (ii) to exercise such other jurisdiction as is conferred on the Financial Services Ombudsman by this Part; (b) to ensure that the Financial Services Ombudsman and the staff of the Financial Services Ombudsman's Bureau are accessible and that complaints about the conduct of regulated financial service providers are dealt with efficiently and effectively and are adjudicated fairly; (c) to enable such complaints to be dealt with in an informal and expeditious manner; (d) to improve public understanding of issues related to complaints against regulated financial service providers and related consumer protection matters.

CHAPTER 2

Financial Services Ombudsman Council Establishment of Financial Services Ombudsman Council.

57BC.—(1) There is established by this section a Council called the ‘Financial Services Ombudsman Council’.

Functions and powers of Financial Services Ombudsman Council.

57BD.—(1) The functions of the Council are— (a) to prescribe guidelines under which the Financial Services Ombudsman is to operate, and (b) to determine the levies and charges payable for the performance of services provided by the Financial Services Ombudsman, and (c) to appoint the Financial Services Ombudsman and all Deputy Financial Services Ombudsmen, and (d) to keep under review the efficiency and effectiveness of the Bureau and to advise the Minister, either at the Minister's request or on its own initiative, on any matter relevant to the operation of the Bureau, and (e) to advise the Ombudsman on any matter on which the Ombudsman seeks advice, and (f) to carry out such other activities as are prescribed by this Part.

Council may impose levies and fees for the purposes of this Part.

57BE.—(1) The purpose of this section is to enable the Financial Services Ombudsman to have sufficient funds to enable that Ombudsman to perform the functions imposed, and to exercise the powers conferred, on that Ombudsman by this or any other Act.

Council to make regulations for the purposes of this Part.

57BF.—(1) The Council shall make regulations for or with respect to matters— (a) that are, by this Part, required or permitted to be prescribed, or (b) that are necessary or convenient to be prescribed for the purpose of enabling the Financial Services Ombudsman to perform the functions imposed, and to exercise the powers conferred, on that Ombudsman by this Part.

Council chairperson to provide Minister with reports.

57BG.—The chairperson of the Council is required to provide the Minister with such reports relating to the activities of the Bureau as the Minister requires from time to time. However, such a report must not include particulars or comments on any complaint that is being or has been investigated by the Financial Services Ombudsman.

Council chairperson to appear before Oireachtas committee when required.

57BH.—(1) The chairperson of the Council is required to attend a meeting of a joint committee of the Houses of the Oireachtas whenever asked to do so by the committee and to provide such information (including documents) as the committee specifies and as is in the possession of, or is available to, that chairperson.

CHAPTER 3

Financial Services Ombudsman's Bureau Financial Services Ombudsman's Bureau.

57BI.—(1) There is established by this section a bureau called the ‘Financial Services Ombudsman's Bureau’.

Financial Services Ombudsman.

57BJ.—(1) The Council shall, whenever the occasion requires, appoint a suitably qualified person to be the Financial Services Ombudsman. However, if a person has been appointed as Financial Services Ombudsman or as Financial Services Ombudsman designate before the commencement of this section, that person is taken to have been appointed by the Council under this subsection.

Functions and powers of Financial Services Ombudsman.

57BK.—(1) The principal function of the Financial Services Ombudsman is to deal with complaints made under this Part by mediation and, where necessary, by investigation and adjudication.

Deputy Financial Services Ombudsman.

57BL.—(1) The Financial Services Ombudsman Council shall, whenever the occasion requires, appoint one or more suitably qualified persons to be Deputy Financial Services Ombudsman. However, if a person has been appointed as a Deputy Financial Services Ombudsman or as a Deputy Financial Services Ombudsman designate before the commencement of this section, that person is taken to have been appointed by the Council under this subsection.

Acting Financial Services Ombudsman.

57BM.—(1) The Council shall appoint the Deputy Financial Services Ombudsman, or, if there are two or more such Ombudsmen, one of those Ombudsmen, to act as Financial Services Ombudsman during the absence of the Financial Services Ombudsman or during a vacancy in the office of that Ombudsman.

Bureau staff.

57BN.—(1) Subject to this section, the Financial Services Ombudsman is responsible for appointing and employing persons necessary for the proper functioning of the Bureau.

Immunity of Financial Services Ombudsman and others.

57BO.—(1) A Bureau staff member is not liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act done, or omitted to be done, in the course of performing a function imposed, or exercising a power conferred, on the member by or under this or any other Act unless it is proved that the act was done, or omitted to be done, in bad faith.

CHAPTER 4

Accounts and reports Financial Services Ombudsman to ensure proper accounts are kept in respect of the Bureau.

57BP.—(1) The Financial Services Ombudsman shall ensure that accounting records are kept that properly record and explain the financial transactions of or relating to the Bureau.

Financial Services Ombudsman to arrange for preparation of annual statement of accounts.

57BQ.—(1) Within 4 months after the end of each financial year, the Financial Services Ombudsman shall arrange for the preparation and transmission to the Comptroller and Auditor General of a statement of accounts for the year. The statement must be in a form approved by the Council acting in consultation with the Minister. A form of statement approved under this subsection remains in force until superseded by another form of statement so approved.

Financial Services Ombudsman to prepare annual report of activities of the Bureau.

57BR.—(1) The Financial Services Ombudsman shall, not later than 6 months after the end of a financial year— (a) prepare an annual report specifying the activities of the Bureau during that year, and (b) submit the report to the Council.

Financial Services Ombudsman to publish certain other reports.

57BS.—(1) Within 3 months after the end of each financial year, the Financial Services Ombudsman shall publish a report containing— (a) a summary of all complaints made to that Ombudsman during the preceding financial year and of the results of the investigations into those complaints, and (b) a review of trends and patterns in the making of complaints to that Ombudsman.

Financial Services Ombudsman to arrange for preparation of annual estimate of income and expenditure.

57BT.—(1) Not later than 3 months before the beginning of each financial year, or within such extended period as the Council may allow, the Financial Services Ombudsman shall arrange for— (a) the preparation of a statement setting out estimates of the income and expenditure relating to the Bureau for that year, and (b) submit the statement to the Council for approval.

Financial Services Ombudsman to prepare strategic plan.

57BU.—(1) The Financial Services Ombudsman shall, at least 3 months before the beginning of each financial year— (a) prepare for the year a strategic plan that complies with this section, and (b) submit the plan to the Council for its approval.

Financial Services Ombudsman to provide Council and Minister with reports.

57BV.—(1) The Financial Services Ombudsman is required to provide the Council or the Minister with such reports relating to the activities of the Bureau as the Council or the Minister requires from time to time. However, such a report must not include particulars or comments on any complaint that is then being considered by the Financial Services Ombudsman.

Financial Services Ombudsman to appear before Oireachtas committee when required.

57BW.—(1) The Financial Services Ombudsman is required to attend a meeting of a joint committee of the Houses of the Oireachtas whenever asked to do so by the committee and to provide such information (including documents) as the committee specifies and as is in the possession of, or is available to, that Ombudsman.

CHAPTER 5

How consumer complaints are to be dealt with Complaints about conduct of regulated financial service providers.

57BX.—(1) An eligible consumer may complain to the Financial Services Ombudsman about the conduct of a regulated financial service provider involving— (a) the provision of a financial service by the financial service provider, or (b) an offer by the financial service provider to provide such a service, or (c) a failure by the financial service provider to provide a particular financial service that has been requested.

Duty of Financial Services Ombudsman to investigate complaints.

57BY.—(1) The Financial Services Ombudsman shall investigate a complaint if satisfied that the complaint is within the jurisdiction of the Financial Services Ombudsman.

Financial Services Ombudsman may decline to investigate or to continue to investigate complaint.

57BZ.—(1) Without limiting section 57BY, the Financial Services Ombudsman can decide not to investigate a complaint, or to discontinue an investigation of a complaint, on the ground that— (a) the complaint is frivolous or vexatious or was not made in good faith, or (b) the subject-matter of the complaint is trivial, or (c) the conduct complained of occurred at too remote a time to justify investigation, or (d) there is or was available to the complainant an alternative and satisfactory means of redress in relation to the conduct complained of, or (e) the complainant has no interest or an insufficient interest in the conduct complained of.

Financial Services Ombudsman to attempt to deal with complaint by mediation in first instance.

57CA.—(1) On receiving a complaint, the Financial Services Ombudsman shall, as far as possible, try to resolve the complaint by mediation.

Persons entitled to make certain submissions to Financial Services Ombudsman.

57CB.—When investigating a complaint, the Financial Services Ombudsman shall provide the parties with an opportunity to make submissions with respect to the conduct complained of.

Financial Services Ombudsman to conduct investigations in private.

57CC.—The Financial Services Ombudsman shall ensure that investigations are conducted in private.

Progress report to complainant.

57CD.—The Financial Services Ombudsman may, in the course of investigating a complaint, periodically report to the complainant on the progress of the investigation and, in so doing, may make such comments to the complainant on the investigation and its consequences and implications as that Ombudsman thinks fit.

Financial Services Ombudsman can require regulated financial service provider to give information.

57CE.—(1) To enable a complaint to be investigated, the Financial Services Ombudsman may require the regulated financial service provider concerned and any associated entity of that financial service provider— (a) to provide information either orally or in writing, or (b) to produce any document or other thing, or (c) to provide a copy of any document, that appears to that Ombudsman to be relevant to the investigation. However, this subsection does not authorise the Financial Services Ombudsman to require the provision of information, or the production of a document or copy of a document, the communication of which is subject to legal professional privilege.

Financial Services Ombudsman may enter premises of regulated financial service provider or associated entity of such a provider.

57CF.—(1) When investigating a complaint about the conduct of a regulated financial service provider, the Financial Services Ombudsman may, at any reasonable time— (a) enter and inspect any business premises occupied or used by the financial service provider or by any other body or person who appears to that Ombudsman to be associated with that provider, and (b) inspect any document or thing in or on the premises.

Circuit Court may order person to comply with requirements, etc., of Financial Services Ombudsman.

57CG.—(1) The Financial Services Ombudsman may apply to the Circuit Court for a compliance order against a person if it appears to that Ombudsman that the person— (a) has failed to comply with a requirement made to the person by that Ombudsman under section 57CE, or (b) has failed to comply with a summons under that section to appear before that Ombudsman for examination, or (c) having complied with such a summons, has refused to be examined, or (d) has otherwise obstructed that Ombudsman in the exercise of a power conferred by this Part.

Obstruction of Financial Services Ombudsman in the performance or exercise of functions and powers.

57CH.—A person who— (a) obstructs the Financial Services Ombudsman in the exercise of a power conferred by this Chapter, or (b) without reasonable excuse, fails to comply with a requirement or request made by that Ombudsman under this Chapter, or (c) in purported compliance with such a requirement or request, gives information that the person knows to be false or misleading, or (d) refuses to comply with a summons to attend before, or to be examined on oath by, that Ombudsman, commits an offence and is liable on summary conviction to a fine not exceeding €2,000 or to imprisonment for a term not exceeding 3 months, or both.

Adjudication of complaints.

57CI.—(1) On completing an investigation of a complaint that has not been settled or withdrawn, the Financial Services Ombudsman shall make a finding in writing that the complaint— (a) is substantiated, or (b) is not substantiated, or (c) is partly substantiated in one or more specified respects but not in others.

Enforcement of Financial Services Ombudsman's directions.

57CJ.—(1) In this section— ‘direction’ means a direction included in a finding made by the Financial Services Ombudsman under section 57CI; ‘enforcement order’ means an order of the Circuit Court to enforce a direction.

CHAPTER 6

References and Appeals under this Part to the High Court Financial Services Ombudsman may refer question of law of High Court.

57CK.—(1) When dealing with a complaint, the Financial Services Ombudsman may, on that Ombudsman's own initiative or at the request of the complainant or the regulated financial service provider concerned, refer for the opinion of the High Court a question of law arising in relation to the investigation or adjudication of the complaint.

Right of appeal to High Court against Financial Services Ombudsman's finding.

57CL.—(1) If dissatisfied with a finding of the Financial Services Ombudsman, the complainant or the regulated financial service provider concerned may appeal to the High Court against the finding.

Orders on appeal to the High Court relating to Financial Services Ombudsman's finding.

57CM.—(1) The High Court is to hear and determine an appeal made under section 57CL and may make such orders as it thinks appropriate in light of its determination.

Appeal stays the finding of the Financial Services Ombudsman.

57CN.—A finding of the Financial Services Ombudsman does not take effect, and may not be implemented, while an appeal under section 57CL or an application under section 57CM(4) is pending in relation to the finding.

CHAPTER 7

Supplementary provisions Protection and other provisions relating to disclosures of information.

57CO.—(1) A provision of any Act or law that prohibits or restricts the disclosure of information does not— (a) operate to prevent or restrict the disclosure of information, or (b) affect a duty to disclose information, under this Part.

Power of Court to grant injunctions in certain cases.

57CP.—(1) The High Court may, on an application made by the Financial Services Ombudsman, grant an injunction restraining conduct in which a regulated financial service provider is engaging or in which a regulated financial service provider appears likely to engage, if the conduct is conduct that is being investigated or is proposed to be investigated under this Part.

Financial Services Ombudsman and Council to co-operate with Regulatory Authority and others.

57CQ.—(1) The Council and the Financial Services Ombudsman shall co-operate with the Regulatory Authority (and, in particular, the Consumer Director) and the Pensions Ombudsman with a view to ensuring that the provisions of this Part operate in a way that contributes to promoting the best interests of consumers of financial services and to the efficient and effective handling of complaints. (1A) The Financial Services Ombudsman shall, whenever asked to do so by the Regulatory Authority, provide that Authority with records or copies of records, or information, dealing with specified matters, or matters of a specified kind, relevant to the performance of that Authority's functions.

CHAPTER 8

Reciprocal arrangements with corresponding agencies of other EEA Countries Definitions (Chapter 8) 57CR.—(1) In this Chapter— ‘complaint’ includes a complaint within the meaning of the EEA Memorandum of Understanding; ‘EEA Memorandum of Understanding’ means the Memorandum of Understanding on a Cross-border Out-of-court Complaints Network for Financial Services in the European Economic Area or, if the memorandum is amended or is replaced by another memorandum, means the memorandum as so amended or that other memorandum.

Financial Services Ombudsman may subscribe to EEA Memorandum of Understanding.

57CS.—The Financial Services Ombudsman may, with the approval of the Council, subscribe to the EEA Memorandum of Understanding.

Financial Services Ombudsman may refer complaints to other EEA dispute settlement body.

57CT.—If the Financial Services Ombudsman subscribed to the EEA Memorandum of Understanding, that Ombudsman may refer a complaint made to that Ombudsman to another EEA dispute settlement body in accordance with the terms of that Memorandum.

Financial Services Ombudsman may mediate, investigate and adjudicate complaints referred by other EEA dispute settlement bodies.

57CU.—If the Financial Services Ombudsman has subscribed to the EEA Memorandum of Understanding, that Ombudsman may mediate, investigate and adjudicate on any complaint referred to that Ombudsman by another EEA dispute settlement body in accordance with the terms of that Memorandum.”.

New Part VIIC inserted into Central Bank Act 1942.

17.—The Central Bank Act 1942 is amended by inserting the following Part after Part VIIB (as inserted by section 16 of this Act): “PART VIIC Consultative Panels

CHAPTER 1

General Interpretation: Part VIIC.

57CV.—In this Part— ‘advisory group’ means an advisory group established under section 57DG; ‘Consultative Consumer Panel’ means the Financial Services Consultative Consumer Panel established under section 57CW; ‘Consultative Industry Panel’ means the Financial Services Consultative Industry Panel established under section 57CW; ‘Consultative Panel’ means the Consultative Consumer Panel or the Consultative Industry Panel; ‘policy document’ means any document that embodies policies or principles relating to the regulation of financial services within the State; ‘proposed policy document’ means any document that embodies proposals for policies or principles relating to the regulation of financial services within the State; ‘proposed regulatory document’ means a regulation, rule, code of conduct or other document that is proposed to have legislative effect with respect to financial service providers or any specified class of financial service providers; ‘Regulatory Authority’ includes any member or officer of the Regulatory Authority, or employee of the Bank, to whom a function or power of that Authority is delegated; ‘regulatory document’ means a regulation, rule, code of conduct or other document that has legislative effect with respect to financial service providers or any specified class of financial service providers.

Establishment and membership of Consultative Panels.

57CW.—(1) The Regulatory Authority shall establish and maintain two consultative panels.

CHAPTER 2

Consultative Consumer Panel Membership of Consultative Consumer Panel.

57CX.—(1) The Consultative Consumer Panel is to consist of not fewer than 5, and not more than 20, members.

Functions of Consultative Consumer Panel.

57CY.—The functions of the Consultative Consumer Panel are as follows: (a) to monitor the performance by the Regulatory Authority of its functions and responsibilities under this Act; (b) to provide the Regulatory Authority with comments with respect to the performance of its functions and responsibilities; (ba) to provide the Regulatory Authority with comments and suggestions with respect to the performance of the financial services industry; (c) to provide the Regulatory Authority with suggestions for initiatives that, in the Panel's opinion, that Authority should take with respect to the performance of its functions and responsibilities; (d) when the Regulatory Authority so requests, to comment on a policy document or regulatory document, or a proposed policy document or proposed regulatory document, prepared by that Authority; (e) to provide the Regulatory Authority with comments on that Authority's draft estimate of income and expenditure for each financial year.

Regulatory Authority to provide sufficient resources to enable Consultative Consumer Panel to function.

57CZ.—(1) The Regulatory Authority shall provide the Consultative Consumer Panel with such administrative services (including technical and legal advice), and such funds, as that Authority believes are necessary to enable that Panel to perform its functions.

CHAPTER 3

Consultative Industry Panel Membership of Consultative Industry Panel.

57DA.—(1) The Consultative Industry Panel is to consist of not fewer than 5, and not more than 20, members.

Functions of Consultative Industry Panel.

57DB.—The functions of the Consultative Industry Panel are as follows: (a) when the Regulatory Authority so requests, to comment on a policy document or regulatory document, or a proposed policy document or proposed regulatory document, prepared by that Authority; (b) to provide the Regulatory Authority with comments on levies and fees that that Authority proposes to prescribe under section 33J or 33K; (c) to provide the Regulatory Authority with comments on that Authority's draft estimate of income and expenditure for each financial year; (d) to provide the Regulatory Authority with comments on the impact that the conditions and restrictions imposed by that Authority on financial service providers have on the competitiveness of those providers; (e) to provide the Regulatory Authority with comments with respect to changing trends within the financial services industry that have implications for the functions and responsibilities of that Authority.

Regulatory Authority to provide sufficient resources to enable Consultative Industry Panel to function.

57DC.—(1) The Regulatory Authority shall provide the Consultative Industry Panel with such administrative services (including technical and legal advice) as that Authority believes are necessary to enable that Panel to perform its functions.

CHAPTER 4

Provisions Applying to Both Consultative Panels Schedule 8 to have effect with respect to Consultative Panels.

57DD.—Schedule 8 has effect with respect to a Consultative Panel.

Consultative Panel to prepare annual report.

57DE.—(1) Within 3 months after the end of each financial year, or within such extended period as the Regulatory Authority allows, each Consultative Panel shall prepare an annual report that provides details of the Panel's activities during that year.

Responsibilities of Regulatory Authority and Minister with respect to Consultative Panels.

57DF.—(1) Before making or issuing a policy document or a regulatory document, the Regulatory Authority shall consult each Consultative Panel, unless that Authority believes that the document must be made or issued without delay. In that case, the Regulatory Authority shall consult each of the Panels as soon as possible after the document is made or issued.

Establishment and operation of advisory groups.

57DG.—(1) A Consultative Panel, or the Consultative Panels jointly, may, with the consent of the Regulatory Authority, establish advisory groups to advise the Panel or Panels on any matter relating to financial services or providers of those services on which the Panel or Panels ask for advice.