(2)An advisory group is to consist of at least one member of the Panel or Panels that established it.
\n
(3)As soon as practicable after being asked by a Consultative Panel, or by the Consultative Panels jointly, to provide advice on a matter, an advisory group shall provide the advice to the Panel or Panels that asked for the advice.
\n
(4)The Regulatory Authority may consult an advisory group on a matter relating to financial services or to providers of those services directly without reference to— (a) the Consultative Panel that established it, or (b) if the group was established by the Consultative Panels jointly, those Panels.
\n
(5)An advisory group may decide its own procedure for convening meetings of the group and for the conduct of business at those meetings.
\n
(6)Within 3 months after the end of each financial year, an advisory group shall provide a report of its activities during that year to— (a) the Consultative Panel that established it, or (b) if the group was established by the Consultative Panels jointly, those Panels.
\n
The report required under this subsection is in addition to any report that the group is required to provide under subsection (3).
\n
(7)An advisory group continues in existence until dissolved— (a) by the Consultative Panel that established it, or (b) if the group was established by the Consultative Panels jointly, by those Panels jointly.
\n
(8)The fact that an advisory group has been dissolved under subsection (7) does not prevent another advisory group or other advisory groups from being established under this section.
\n
Chairperson of Consultative Panel to attend meetings of relevant Oireachtas Joint Committee when required.
\n
57DH.—(1) The chairperson of a Consultative Panel shall attend a meeting of the relevant Joint Committee of the Oireachtas whenever that Committee requires that chairperson to do so.
\n
(2)When attending a meeting of the relevant Joint Committee of the Oireachtas, the chairperson of a Consultative Panel shall provide that Committee with such information as it reasonably requires about matters with which the Panel is or has been concerned.
\n
(3)In this section, ‘relevant Joint Committee of the Oireachtas’ means a Joint Committee of the Oireachtas to which the Oireachtas has assigned the role of examining matters relating to the operation of the Regulatory Authority.”.
\n
Amendment of section 61E of Central Bank Act 1942.
\n
18.—Section 61E of the Central Bank Act 1942 (as inserted by section 30 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended— (a) by inserting after subsection (1)(g)— “(ga) the Financial Services Ombudsman, (gb) the Pensions Ombudsman,”, (b) in paragraph (h), by substituting “section,” for “section.”, and (c) by inserting the following paragraph after paragraph (h): “(i) any body established by or under an enactment for the purpose of supervising the conduct of auditors.”.
\n
Insertion of new section 61G into Central Bank Act 1942.
\n
19.—The Central Bank Act 1942 is amended by inserting the following section after section 61F (as inserted by section 30 of the Central Bank and Financial Services Authority of Ireland Act 2003 ): “How the Bank may give or serve notices and other documents.
\n
61G.—(1) If a provision of this Act or the regulations, or a provision of a designated enactment or designated statutory instrument, requires or authorises the Bank or the Regulatory Authority to give or serve a notice or other document, the notice or other document may be given or served— (a) in the case of a natural person— (i) by delivering the notice or other document to the person personally, or (ii) by leaving the notice or other document at, or by sending it by prepaid post to, the person's residential or business address last known to the Bank or Regulatory Authority, or (b) in the case of a body corporate— (i) by leaving the notice or other document at, or (ii) by sending it by prepaid post to, the head office, a registered office or a principal office of the body corporate, or (c) in the case of a partnership— (i) by delivering the notice or other document to one of the partners personally, or (ii) by leaving the notice or other document at, or by sending it by prepaid post to the head office or a principal office of the partnership.
\n
(2)Nothing in this section limits the operation of any provision of any law that requires or authorises a notice or other document to be given or served in a manner not provided for by this section.
\n
(3)The regulations may— (a) enable the Bank or Regulatory Authority to give or serve notices or other documents, or any specified class of notices or other documents, by a method other than one specified in subsection (1), and (b) provide for a notice or document of a specified class to be given or served only in the manner prescribed by the regulations.”.
\n
Amendment of Schedule 2 to Central Bank Act 1942 (Enactments and regulations under which Regulatory Authority is to perform functions of the Bank).
\n
20.—(1) Schedule 2 to the Central Bank Act 1942 (as inserted by section 31 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended in Part 1— (a) by deleting the item relating to the Criminal Justice Act 1994 , and (b) in column 3 of the item relating to the Central Bank Act 1997 , by inserting “and section 77” after “Parts II and III”.
\n
(2)Schedule 2 to the Central Bank Act 1942 (as inserted by section 31 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended by substituting “The whole instrument” for “First Schedule to Article 8” where those words appear in the item relating to the Building Societies Regulations 1987 in column 3 of Part 2.
\n
Amendment of Schedule 5 to Central Bank Act 1942 (Provisions applicable to members of the Appeals Tribunal).
\n
21.—Schedule 5 to the Central Bank Act 1942 (as inserted by section 33 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended in paragraph 12(2) by substituting “under section 57F” for “by or under this Schedule”.
\n
Insertion into Central Bank Act 1942 of new Schedules 6 and 7.
\n
22.—The Central Bank Act 1942 is amended by inserting the following Schedules after Schedule 5 (as inserted by section 33 of the Central Bank and Financial Services Authority of Ireland Act 2003 ): “SCHEDULE 6 Section 57BC.
\n
Financial Services Ombudsman Council Secretary to the Council.
\n
1.—The Chairperson shall, with the agreement of the Financial Services Ombudsman, designate a member of the Bureau staff to be Secretary to the Council.
\n
Provision of services to the Council.
\n
2.—Whenever the Chairperson requests, the Financial Services Ombudsman shall, so far as it is possible to do so, arrange for the Council to be provided with such administrative services (including technical and legal advice) as the Council requires to enable it to perform its functions.
\n
Members of Council entitled to certain fees and allowances.
\n
3.—Members of the Council are entitled to be paid such fees and travelling and subsistence allowances as the Minister approves. Those fees and allowances are payable out of the funds of the Bureau.
\n
Termination of membership of Council.
\n
4.—(1) A person ceases to be a member if the person— (a) dies, or (b) completes a term of office and is not reappointed, or (c) resigns the office by notice in writing addressed to the Minister, or (d) has, without the permission of the other members, been absent from meetings of the Council for a consecutive period of 6 months, or (e) is, with the person's consent, nominated as a candidate for election as a member of either House of the Oireachtas, or (f) is, with the person's consent, nominated as a candidate for election as a member of the European Parliament or to fill a vacancy in the membership of that Parliament, or (g) is, with the person's consent, nominated as a candidate for election as a member of a local authority, or (h) is adjudged bankrupt (either in the State or elsewhere) or enters into a composition with the person's creditors, or (i) becomes physically or mentally incapable of performing the duties of a member, or (j) is convicted of an offence (either in the State or elsewhere) and sentenced to serve a term of imprisonment for the offence, or (k) is removed from office under subparagraph (2).
\n
(2)The Minister may remove an appointed member from office— (a) for proven misconduct or incompetence, or (b) in order to enable the Council to function effectively.
\n
Filling vacancy in office of member.
\n
5.—(1) If the office of a member becomes vacant, the Minister is required to arrange for a suitably qualified person to be appointed to fill the vacancy in accordance with this Act within 60 days after the date on which the vacancy occurred.
\n
(2)Subparagraph (1) does not apply if the term of office of the member concerned was due to expire within 60 days after the vacancy occurred.
\n
Procedure for convening and holding meetings of Council.
\n
6.—The procedure for convening meetings of the Council and for the conduct of business at those meetings is, subject to this Schedule, to be as determined by the Council. The Council may determine that procedure by means of rules or standing orders or by any other means.
\n
Quorums at meetings of Council.
\n
7.—The quorum for a meeting of the Council is a majority of the members of the Council.
\n
Who is to preside at meetings of Council.
\n
8.—A meeting of the Council is to be presided over by— (a) the Chairperson, or (b) in the absence of the Chairperson, a member elected by the members of the Council present at the meeting.
\n
Voting at Council meetings.
\n
9.—(1) A decision supported by a majority of the votes cast at a meeting of the Council at which a quorum is present is the decision of the Council.
\n
(2)If the votes are equal on a motion put at a meeting of the Council, the person who is presiding at the meeting has a casting as well as a deliberative vote.
\n
Transaction of business otherwise than at ordinary meetings.
\n
10.—(1) The Council may, if it thinks fit, transact any of its business by the circulation of papers among all its existing members. A resolution approved in writing by a majority of those members is taken to be a decision of the Council.
\n
(2)The Council may, if it thinks fit, transact any of its business at a meeting at which its members (or some of its members) participate by telephone, closed circuit television or other means, but only if any member who speaks on a matter being considered by the meeting can be heard by the other members. For the purposes of— (a) the approval of a resolution under subparagraph (1), or (b) a meeting held in accordance with subparagraph (2), the members of the Council have the same voting rights as they have at an ordinary meeting of the Council.
\n
(3)Papers may be circulated among Council members for the purposes of subparagraph (1) by the electronic transmission of the information in the papers concerned.
\n
SCHEDULE 7 Section 57BJ, 57BL, 57BN.
\n
Financial Services Ombudsman, Deputy Financial Services Ombudsmen and Other Bureau Staff Members Vacation of office of Financial Services Ombudsman and Deputy Financial Services Ombudsman.
\n
1.—(1) A person ceases to hold office as the Financial Services Ombudsman or as a Deputy Financial Services Ombudsman if the person— (a) dies, or (b) completes a term of office and is not reappointed, or (c) resigns the office by notice in writing addressed to the Council, or (d) is, with the person's consent, nominated as a candidate for election as a member of either House of the Oireachtas, or (e) is, with the person's consent, nominated as a candidate for election as a member of the European Parliament or to fill a vacancy in the membership of that Parliament, or (f) is, with the person's consent, nominated as a candidate for election as a member of a local authority, or (g) is adjudged bankrupt (either in the State or elsewhere) or enters into a composition with the person's creditors, or (h) becomes physically or mentally incapable of performing the duties of Financial Services Ombudsman or Deputy Financial Services Ombudsman, or (i) is convicted of an offence (either in the State or elsewhere) and sentenced to serve a term of imprisonment for the offence, or (j) is removed from office under subparagraph (2).
\n
(2)The Council may remove the Financial Services Ombudsman or a Deputy Financial Services Ombudsman from office— (a) for proven misconduct or incompetence, or (b) if the removal appears to the Council to be necessary for the effective performance of the functions of the office concerned.
\n
Remuneration and conditions of service of Financial Services Ombudsman and Deputy Financial Services Ombudsman.
\n
2.—(1) The Financial Services Ombudsman and each Deputy Financial Services Ombudsman is entitled to be paid such remuneration and allowances (including travel and subsistence allowances) as the Council decides.
\n
(2)A decision of the Council under this paragraph does not take effect until approved by the Minister.
\n
Financial Services Ombudsman and Deputy Financial Services Ombudsman not to engage in paid employment without approval.
\n
3.—Neither the Financial Services Ombudsman nor a Deputy Financial Services Ombudsman may engage in paid employment outside the duties of the office unless the Council approves the employment.
\n
Superannuation schemes for the benefit of Financial Services Ombudsman and Deputy Financial Services Ombudsmen.
\n
4.—(1) In this paragraph— ‘superannuation scheme’ means a superannuation scheme prepared under subparagraph (2) or (4), and if the scheme is amended in accordance with this paragraph, means the scheme as amended; ‘beneficiary’ means the Financial Services Ombudsman or a Deputy Financial Services Ombudsman or a person who formerly held either of those offices.
\n
(2)The Council shall prepare a scheme for the provision of superannuation benefits to or in respect of the Financial Services Ombudsman and each Deputy Financial Services Ombudsman and any person who formerly held any of those offices. More than one scheme may be prepared under this subparagraph. However, a scheme prepared under this subparagraph does not take effect until the Minister has approved it.
\n
(3)The Council shall ensure that a superannuation scheme prescribes the conditions under which a beneficiary and the beneficiary's dependants will be eligible to receive superannuation benefits under the scheme. Different conditions may be prescribed according to the differing circumstances that apply to a particular beneficiary or the dependants of the beneficiary.
\n
(4)The Council may from time to time prepare an amendment to a superannuation scheme, or a new superannuation scheme to be substituted for an existing scheme. However, an amendment to a superannuation scheme or a substituted superannuation scheme prepared under this subparagraph does not take effect until the Minister has approved it.
\n
(5)The Council is responsible for ensuring that a superannuation scheme is approved by the Minister under this paragraph.
\n
(6)Except with the written consent of the Minister, the Council may not provide superannuation benefits to or in respect of a beneficiary or make arrangements for the provision of such benefits otherwise than in accordance with a superannuation scheme approved by the Minister in accordance with this paragraph.
\n
(7)The Council is responsible for conciliating and settling any dispute that arises in relation to a claim made by a beneficiary or a dependant of a beneficiary for or in respect of the payment of a superannuation benefit under a superannuation scheme approved by the Minister.
\n
Superannuation schemes for the benefit of staff of the Bureau.
\n
5.—(1) In this paragraph— ‘superannuation benefit’ means a superannuation benefit payable to a beneficiary or, if the beneficiary has died, to the spouse or a child of the beneficiary, and includes a pension, a retirement allowance and a gratuity; ‘superannuation scheme’ means a superannuation scheme prepared under subparagraph (2) or (4), and if the scheme is amended in accordance with this paragraph, means the scheme as amended; ‘beneficiary’ means a member or former member of the Bureau staff.
\n
(2)The Council shall prepare a scheme for the provision of superannuation benefits to or in respect of members and former members of the Bureau staff. More than one scheme may be prepared under this subparagraph. However, a scheme prepared under this subparagraph does not take effect until the Minister has approved it.
\n
(3)The Council shall ensure that a superannuation scheme prescribes the ages at which a beneficiary must retire and the conditions under which a beneficiary and the beneficiary's dependants will be eligible to receive superannuation benefits under the scheme. Different retirement ages and eligibility conditions may be prescribed according to the differing circumstances that apply to a particular beneficiary or the dependants of the beneficiary.
\n
(4)The Council may from time to time prepare an amendment to a superannuation scheme, or a new superannuation scheme to be substituted for an existing scheme. However, an amendment to a superannuation scheme, or a substituted superannuation scheme, prepared under this subparagraph does not take effect until the Minister has approved it.
\n
(5)The Council is responsible for ensuring that a superannuation scheme is approved by the Minister in accordance with this paragraph.
\n
(6)Except with the written consent of the Minister, the Council may not provide superannuation benefits to or in respect of a beneficiary or make arrangements for the provision of such benefits otherwise than in accordance with a superannuation scheme approved by the Minister in accordance with this paragraph.
\n
(7)The Council is responsible for conciliating and settling any dispute that arises in relation to a claim made by a beneficiary or a dependant of a beneficiary for or in respect of the payment of a superannuation benefit under a superannuation scheme approved by the Minister.
\n
Council to arrange for superannuation schemes and amendments to be laid before the Houses of the Oireachtas.
\n
6.—(1) As soon as practicable after the Minister has approved a superannuation scheme or an amendment to such a scheme in accordance with paragraph 4 or 5, the Council shall arrange for a copy of the document embodying the scheme or amendment to be laid before each House of the Oireachtas.
\n
(2)Within 21 sitting days after a superannuation scheme or an amendment to such a scheme is laid before a House of the Oireachtas in accordance with subparagraph (1), the House may pass a resolution annulling the scheme or amendment. However, the annulment of such a scheme or amendment does not affect the validity of anything previously done under the scheme or the scheme as amended.
\n
(3)If an amendment to a superannuation scheme is annulled under subparagraph (2), the scheme continues to have effect as if the amendment had never been made.”.
\n
Insertion into Central Bank Act 1942 of new Schedule 8.
\n
23.—The Central Bank Act 1942 is amended by inserting the following Schedule after Schedule 7 (as inserted by section 22 of this Act): “SCHEDULE 8 Section 57DD.
\n
Provisions Applying to Both Consultative Panels Members of Consultative Panel entitled to expense allowances.
\n
1.—A member of a Consultative Panel is entitled to be paid from the funds of the Regulatory Authority such attendance, travelling and subsistence allowances as that Authority determines.
\n
Termination of membership of Consultative Panel.
\n
2.—(1) A person ceases to be a member of a Consultative Panel if the person— (a) dies, or (b) completes a term of office and is not reappointed, or (c) resigns from membership by notice in writing addressed to the Minister, or (d) is, with the person's consent, nominated as a candidate for election as a member of either House of the Oireachtas, or (e) is, with the person's consent, nominated as a candidate for election as a member of the European Parliament or to fill a vacancy in the membership of that Parliament, or (f) is, with the person's consent, nominated as a candidate for election as a member of a local authority, or (g) is adjudged bankrupt (either in the State or elsewhere) or enters into a composition with the person's creditors, or (h) becomes physically or mentally incapable of performing the duties of a member, or (i) is convicted of an offence (either in the State or elsewhere) and sentenced to serve a term of imprisonment for the offence, or (j) is removed from membership under subparagraph (3).
\n
(2)A member's resignation does not take effect until the end of the meeting of the relevant Consultative Panel next held after the notice of resignation was given to the Minister.
\n
(3)The Minister may, after consulting the Regulatory Authority, remove a person from membership of a Consultative Panel for a specified reason.
\n
(4)If a person is removed from membership of a Consultative Panel, the Minister is required to give the person a statement in writing specifying the reason.
\n
Meetings of Consultative Panels.
\n
3.—A Consultative Panel may determine its own procedure for convening meetings of the Panel and for the conduct of business at those meetings. The Panel may determine that procedure by means of rules or standing orders or by any other means.”.
\n
PART 3
\n
Amendment of Central Bank Act 1997 Amendment of section 2 of Central Bank Act 1997 (Interpretation).
\n
24.—(1)
\n
Section 2
\n
(1)of the Central Bank Act 1997 is amended— (a) by inserting the following definitions after the definition of “Bank”: “ ‘Central Bank Acts’ means the Central Bank Act 1942 as amended from time to time, and includes all Acts that are to be construed together with that Act as one Act; ‘contravene’ includes fail to comply;”; (b) by inserting the following definitions after the definition of “credit institution”; “ ‘designated enactment’ means an enactment specified in
\n
Part 1
\n
of Schedule 2 to the Central Bank Act 1942 ; ‘designated statutory instrument’ means a statutory instrument specified in
\n
Part 2
\n
of Schedule 2 to the Central Bank Act 1942 ; ‘EEA country’ means a country that is a member of the European Economic Area;”; (c) by inserting the following definitions after the definition of “prescribed”: “ ‘publication’ includes publication on an Internet website; ‘publish’ includes publish by means of the Internet; ‘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; ‘regulated financial service provider’ has the same meaning as in section 2(1) of the Act of 1942;”; (d) by deleting “,1942 to 1997” from paragraph (a) of the definition of “statutory functions”.
\n
(2)
\n
Section 2
\n
(2)of the Central Bank Act 1997 is amended by deleting “,1942 to 1997”.
\n
(3)Section 2 is amended by inserting the following subsection after subsection (2): “(2A) For the purposes of this Act, a person is concerned in the management of a body corporate, if the person is in any way involved in directing, managing or administering the affairs of the body or firm.”.
\n
Amendment of section 19 of Central Bank Act 1997 (Prohibition of revocation of certain payments).
\n
25.—
\n
Section 19
\n
of the Central Bank Act 1997 is amended by substituting “Bank” for “Central Bank”, wherever occurring.
\n
Substitution of Part IV of Central Bank Act 1997.
\n
26.—The Central Bank Act 1997 is amended by substituting the following Part for Part IV: “PART IV Functions of Bank with Respect to Regulated Financial Service Providers
\n
CHAPTER 1
\n
Introductory Interpretation (Part IV).
\n
24.—(1) In this Part— ‘affiliate’, in relation to an auditor, means a firm or body corporate specified by subsection (2) as being an affiliate of the auditor; ‘company’ has the same meaning as in section 2
\n
(1)of the Companies Act 1963 ; ‘firm’ has the same meaning as in section 4 of the Partnership Act 1890 ; ‘guideline’ means a guideline issued under section 27A or, if such a guideline is amended, means the guideline as amended; ‘public authority’ means a body (whether corporate or incorporate) established or constituted by or under an Act that performs one or more public functions; ‘relevant obligations’, in relation to a regulated financial service provider, means the service provider's obligations under— (a) all designated enactments and all designated statutory instruments that apply to it, and (b) all codes, guidelines and notices issued by the Bank that apply to it, and (c) all other enactments and statutory instruments with which it must comply; ‘work’, in relation to an auditor, includes all work of an accounting, financial or advisory nature that an auditor does for a financial service provider as well as work involved in auditing the financial service provider's accounts.
\n
(2)For the purposes of this Part, each of the following is an affiliate of an auditor in a financial year: (a) in the case of an auditor that is a firm— (i) any other firm that, at any time during the financial year, was under the same ownership and control as the auditor, (ii) any body corporate in which the auditor, any firm mentioned in subparagraph (i) or (iv) or any body corporate mentioned in subparagraph (iii) or (iv) was, at any time in the financial year, entitled to exercise or control the exercise of 20 per cent or more of the voting rights at a general meeting, (iii) any body corporate that was, at any time in the financial year, in the same group as a body corporate mentioned in subparagraph (ii), (iv) any other firm, or body corporate, that because of the use of a common name or corporate identity or the sharing of common professional services could reasonably be considered to be associated with the auditor, (b) in the case of an auditor who is a natural person— (i) any partnership in which the auditor was, at any time in the financial year, a partner, (ii) any body corporate in which the auditor, any partnership mentioned in subparagraph (i) or any body corporate mentioned in subparagraph (iii) was, at any time in the financial year, entitled to exercise or control the exercise of 20 per cent or more of the voting rights at a general meeting, (iii) any body corporate that was, at any time in the financial year, in the same group as a body corporate mentioned in subparagraph (ii).
\n
(3)For the purposes of this Part, a director of a regulated financial service provider that is a body corporate is taken to be concerned in the management of the financial service provider even though the director is not involved in its day to day management.
\n
CHAPTER 2
\n
Compliance and related statements Obligation of regulated service provider to provide compliance statement when required to do so by the Bank.
\n
25.—(1) The Bank may, whenever it considers appropriate, serve on a regulated financial service provider a notice requiring the service provider to comply with this section.
\n
(2)The Bank may also serve such a notice at the request of another public authority only if it is of the opinion that it would be in the public interest to do so.
\n
(3)A notice must specify a reasonable period within which the requirement is to be complied with and, if the notice is served at the request of another public authority, it must specify the name and address of that authority.
\n
(4)A regulated financial service provider on whom a notice is served shall provide the Bank with a compliance statement within the required period.
\n
(5)If the compliance statement is provided at the request of another public authority, the financial service provider concerned shall, also within the required period, provide the public authority with a copy of the statement.
\n
(6)A compliance statement must, in accordance with any relevant guideline, specify whether the regulated financial service provider concerned has, during the compliance period specified in the notice, complied with its relevant obligations, or with such of them as are specified in the notice.
\n
(7)A compliance statement must also comply with the guidelines (if any) from time to time issued under section 27A (1). (7A) In the case of a regulated financial service provider that is a company to which section 205E of the Companies Act 1990 applies, the Bank may, instead of serving on the financial service provider a notice under this section, rely on a compliance statement prepared under that section if it is satisfied that the statement contains the information that would be required to be included in a compliance statement under this section.
\n
(8)In this section— ‘notice’ means a notice in writing served under this section; ‘required period’, in relation to a notice served on a regulated financial service provider, means the period specified in the notice within which the service provider must comply with the notice or, if the Bank extends that period, that extended period.
\n
Compliance statement to be accompanied by auditor's report if required.
\n
26.—(1) If a notice served under section 25 so requires, the financial service provider concerned shall request that service provider's auditor to prepare a report about the relevant compliance statement.
\n
(2)Within such period as is specified in the notice, the auditor shall prepare a report about the relevant compliance statement and deliver the report to the financial service provider concerned.
\n
(3)Such a report must— (a) state whether the relevant compliance statement is, in the auditor's opinion, fair and reasonable in the light of the information obtained by the auditor, or by an affiliate of the auditor, in the course of undertaking work for the service provider, and (b) if the auditor is of the opinion that the compliance statement is not fair and reasonable, specify the reasons why, in the auditor's opinion, that statement is not fair and reasonable.
\n
(4)As soon as practicable after receiving a report prepared in accordance with this section, the financial service provider concerned shall— (a) attach the report to the compliance statement, or (b) if that statement has already been delivered to the Bank, deliver the report to the Bank, and if another public authority requested the compliance statement, also deliver a copy of the report to the public authority.
\n
(5)If a report prepared in accordance with this section relates to a financial service provider that is a company, the auditor shall include a copy of the report in the auditor's report on the company's accounts that are required to be laid before the company in general meeting.
\n
Offences under section 25 or 26.
\n
27.—(1) A regulated financial service provider who fails to comply with a requirement of section 25 or 26 commits an offence and is— (a) if tried summarily, liable on conviction to a fine not exceeding €2,000, or (b) if tried on indictment, liable on conviction to a fine not exceeding €75,000.
\n
(2)A regulated financial service provider who, having been convicted of an offence of failing to comply with a requirement of section 25 or 26, continues to fail to comply with the requirement commits a further offence on each day or part of a day during which the failure continues after that conviction and— (a) if tried summarily, is liable on conviction to a fine not exceeding €200 for each such day or part of a day, or (b) if tried on indictment, is liable on conviction to a fine not exceeding €7,500 for each such day or part of a day.
\n
(3)If a regulated financial service provider that is a body corporate commits an offence under subsection (1) or (2), each person who, at the time when the offence is found to have been committed, was concerned in the management of the body commits a separate offence, unless the person establishes that— (a) the body committed the offence without the person's knowledge, or (b) although the person did have that knowledge, the person took all reasonably practicable steps to prevent the commission of the offence.
\n
(4)A person may be charged with having committed an offence under subsection (3) even if the financial service provider concerned is not charged with having committed an offence under subsection (1) in relation to the same matter.
\n
(5)A person who is convicted of an offence under subsection (3) is liable to a fine not exceeding that prescribed by subsection (1) or (2) for a regulated financial service provider.
\n
Bank may issue guidelines.
\n
27A.—(1) The Bank may from time to time issue guidelines with which a compliance statement must comply.
\n
(2)The Bank may also from time to time issue guidelines specifying the manner in which the persons concerned in the management of regulated financial service providers, or of regulated financial service providers of a specified class, are required to exercise control over those service providers so as to ensure that those service providers comply with their obligations under the designated enactments and designated statutory instruments that apply to them.
\n
(3)Whenever the Bank issues guidelines under this section, or amends or revokes those guidelines, the Bank must publish in Iris Oifigiúil a notice— (a) stating that the guidelines have been issued, or have been amended or revoked, and (b) specifying a place or places where copies of the guidelines, or the amendment or revocation, may be obtained.
\n
(4)The Bank shall publish guidelines issued under this section, or any amendment or revocation of those guidelines, in a publication chosen by the Bank.
\n
(5)Guidelines issued under this section take effect on the date on which the notice of their issue is published in Iris Oifigiúil or on such later date as is specified in the publication.
\n
(6)The Bank may amend or revoke guidelines issued under this section.
\n
(7)An amendment or revocation of a guideline issued under this section takes effect on the date on which notice of the amendment or revocation is published in Iris Oifigiúil or on such later date as is specified in the notice.
\n
(8)All courts and tribunals are required to take judicial notice of guidelines in force under this section.
\n
CHAPTER 3
\n
Obligations of auditors of regulated financial service providers Auditor of regulated financial service provider to lodge annual report with Bank.
\n
27B.—(1) This section applies to an auditor who is required by or in accordance with a prescribed enactment to report a matter to the Bank.
\n
(2)Within 1 month after the date of the auditor's report on the financial service provider's accounts, or within such extended period as the Bank allows, the auditor of the service provider shall deliver a written report to the Bank— (a) stating whether or not circumstances have arisen that require the auditor to report a matter to the Bank under a prescribed enactment and, if such circumstances have arisen, specify those circumstances, and (b) where the service provider has, during that financial year, been required to provide the Bank with a compliance statement stating whether or not the requirement has been complied with.
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(3)A report under this section must be in a form publicly notified by the Bank.
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(4)The following are prescribed enactments for the purpose of this section: (a) section 35 of the Insurance Act 1989 ; (b) section 47 of the Central Bank Act 1989 ; (c) section 89 of the Building Societies Act 1989 ; (d) section 38 of the Trustee Savings Banks Act 1989 ; (e) section 258 of the Companies Act 1990 ; (f) section 15 of the Unit Trusts Act 1990 ; (g) section 16 of the Investment Limited Partnerships Act 1994 ; (h) section 33 of the Investment Intermediaries Act 1995 ; (i) section 34 of the Stock Exchange Act 1995 ; (j) section 122 of the Credit Union Act 1997 ; (k) regulations 7, 8 and 9 of the Supervision of Credit Institutions, Stock Exchange Member Firms and Investment Business Firms Regulations 1996; (l) regulation 85 of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003; (m) any other provision of an Act or regulations declared under subsection (5) to be a prescribed enactment for the purpose of this section.
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(5)The Bank may, by notice published in Iris Oifigiúil, declare a provision of an Act or regulations to be a prescribed enactment for the purpose of this section.
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Duty of auditor to provide Bank with copies of certain reports.
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27C.—(1) If the auditor of a regulated financial service provider provides the financial service provider, or those concerned in its management, with a report on a matter that has come to the auditor's notice while auditing the accounts of the financial service provider or carrying out any other work for the financial service provider of a kind specified by the Bank, the auditor shall provide the Bank with a copy of the report. The copy must be provided at the same time as, or as soon as practicable after, the original is provided to the financial service provider or those concerned in its management.
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(2)If— (a) an auditor of a regulated financial service provider invites the financial service provider, or the persons concerned in its management, to comment on a draft of a report referred to in subsection (1), and (b) the financial service provider or those persons comment on the draft in response to the invitation, the obligation of the auditor under that subsection applies only to the final version of the report.
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(3)If, in relation to the financial year of a regulated financial service provider, there has been no reason for the auditor of the service provider to provide such a report, the auditor shall nevertheless notify the Bank in writing that this is the case.
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Duty of auditor to provide Bank with copies of reports sent to Director of Corporate Enforcement.
\n
27D.—Whenever an auditor of a regulated financial service provider that is a company provides the Director of Corporate Enforcement with a report or other document in accordance with a requirement imposed by the Companies Acts or any other enactment, the auditor shall also provide the Bank with a copy of that report or document. The copy must be provided at the same time as, or as soon as practicable after, the original is provided to the Director of Corporate Enforcement.
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Bank may request auditor of regulated financial service provider to provide Bank with report on certain matters.
\n
27E.—(1) The Bank may, by notice in writing, request an auditor of a regulated financial service provider, or an affiliate of the auditor, to provide the Bank with a report on all or any of the following: (a) the service provider's accounting or other records; (b) the systems (if any) that the service provider has in place to ensure that the service provider acts prudently in the interests of its members (if a company or firm) and the interests of those to whom the service provider provides financial services; (c) any other matter in respect of which the Bank requires information about the service provider, or the service provider's activities, to enable the Bank to perform a function imposed on it by or under an Act.
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(2)The auditor or affiliate shall comply with such a request within such period as is specified in the request, or within such extended period as the Bank may allow.
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(3)If the Bank so directs, the auditor or affiliate shall not, without the consent of the Bank, disclose to the financial service provider concerned, or any person concerned in the management of, or employed by, that service provider— (a) the fact that the auditor or affiliate has received a request under subsection (1), or (b) any information that might lead that service provider, or any such person, to suspect that the auditor or affiliate has received such a request.
\n
Bank may require auditor of regulated financial service provider to provide certain documents.
\n
27F.—(1) The Bank may, by notice in writing, require an auditor of a regulated financial service provider, or an affiliate of the auditor, to provide the Bank with a copy of any record or information provided or obtained by the auditor or affiliate in connection with an audit of the financial service provider's accounts that is in the possession of the auditor or affiliate.
\n
(2)The auditor or affiliate shall comply with such a request within such period as is specified in the request, or within such extended period as the Bank may allow.
\n
(3)If the Bank so directs, the auditor or affiliate shall not, without the consent of the Bank, disclose to the financial service provider concerned, or any person concerned in the management of, or employed by, that service provider— (a) the fact that the auditor or affiliate has received a request under subsection (1), or (b) any information that might lead that service provider, or any such person, to suspect that the auditor or affiliate has received such a request.
\n
Offences by auditors and affiliates under this Chapter.
\n
27G.—(1) An auditor of a regulated financial service provider who, without reasonable excuse, fails to comply with section 27B(2), 27C(1), 27D, 27E(2) or 27F(2), or contravenes section 27E(3) or 27F(3), commits an offence and— (a) if tried summarily, is liable on conviction to a fine not exceeding €2,000, or (b) if tried on indictment, is liable on conviction to a fine not exceeding €75,000.
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(2)An affiliate of an auditor of a regulated financial service provider who, without reasonable excuse, fails to comply with section 27E(2) or 27F(2), or contravenes section 27E(3) or 27F(3), commits an offence and— (a) if tried summarily, is liable on conviction to a fine not exceeding €2,000, or (b) if tried on indictment, is liable on conviction to a fine not exceeding €75,000.
\n
(3)An auditor who, having been convicted of an offence of failing to comply with a provision of section 27B, 27C, 27D, 27E or 27F, continues to fail to comply with the provision commits a further offence on each day or part of a day during which the failure continues after that conviction and— (a) if tried summarily, is liable on conviction to a fine not exceeding €200 for each such day or part of a day, or (b) if tried on indictment, is liable on conviction to a fine not exceeding €7,500 for each such day or part of a day.
\n
(4)An affiliate of an auditor who, having been convicted of an offence of failing to comply with a provision of section 27E or 27F, continues to fail to comply with the provision commits a further offence on each day or part of a day during which the failure continues after that conviction and— (a) if tried summarily, is liable on conviction to a fine not exceeding €200 for each such day or part of a day, or (b) if tried on indictment, is liable on conviction to a fine not exceeding €7,500 for each such day or part of a day.
\n
Auditors to have certain immunities from liability.
\n
27H.—An auditor or an affiliate of a regulated financial service provider does not— (a) contravene any duty of confidentiality owed to the service provider or to its creditors or clients or, if the service provider is an incorporated or unincorporated body, to its members, or (b) incur any tortious liability, only because the auditor or affiliate complies with a duty imposed on the auditor or affiliate by this Part.
\n
CHAPTER 4
\n
Supplementary provisions Offence to provide false or misleading information for the purposes of this Part.
\n
27I.—Any person who, in a return, statement or other document required by or under a provision of this Part or a regulation made for the purposes of this Part, provides information that the person knows, or ought reasonably to know, is false or misleading in a material respect commits an offence and is— (a) if tried summarily, liable on conviction to a fine not exceeding €2,000 and to imprisonment for a term not exceeding 3 months, or both, or (b) if tried on indictment, liable on conviction to a fine not exceeding €75,000 or to imprisonment for a term not exceeding 12 months, or both.
\n
Who may prosecute offences against this Part that are to be tried summarily.
\n
27J.—Proceedings for an offence against a provision of this Part that is to be tried summarily may be brought and prosecuted only by the Bank or the Director of Public Prosecutions.
\n
Limitation period for bringing proceedings for summary trial of offence against this Part.
\n
27K.—Proceedings for an offence against a provision of this Part that is to be tried summarily may be brought at any time within 2 years after the date on which the offence is alleged to have been committed or, if the commission of the offence is discovered after the end of that period, within 2 years after the discovery of the commission of the offence. This section has effect despite section 10
\n
(4)of the Petty Sessions (Ireland) Act 1851 .”.
\n
Substitution of Part V of Central Bank Act 1997.
\n
27.—The Central Bank Act 1997 is amended by substituting the following Part for Part V: “PART V Supervision of Regulated Businesses
\n
CHAPTER 1
\n
Introductory provisions Definitions (Part V).
\n
28.—In this Part— ‘Appeals Tribunal’ means the Irish Financial Services Appeals Tribunal established under Part VIIA of the Central Bank Act 1942 ; ‘authorisation’ means an authorisation authorising a person to carry on— (a) a bureau de change business, or (b) a money transmission business, and, if an authorisation is amended in accordance with section 34, means the authorisation as amended; ‘bureau de change business’ means a business that comprises or includes providing members of the public with a service that involves buying or selling foreign currency, other than a service that is provided— (a) by a person or body regulated by the Bank referred to in section 32
\n
(1)(a) to (k) of the Criminal Justice Act 1994 , or (b) by a person or body prescribed as a designated body under section 32(10)(a) of that Act (but only if the person or body is regulated by the Bank under a designated enactment or designated statutory instrument), or (c) by a person or body on an ancillary basis in the ordinary course of providing services to customers of the person or body; ‘inspector’ means a person holding office as an inspector under section 36G; ‘money’ includes any representation of money (such as a cheque) and any means by which monetary value is stored; ‘money transmission business’ means a business that comprises or includes providing a money transmission service to members of the public; ‘money transmission service’ means a service that involves transmitting money by any means, other than such a service provided— (a) by a person or body referred to in section 32
\n
(1)(a) to (k) of the Criminal Justice Act 1994 , or (b) by a person or body prescribed as a designated body under section 32(10)(a) of that Act (but only if the person or body is regulated by the Bank under a designated enactment or designated statutory instrument), or (c) by a person or body on an ancillary basis in the ordinary course of providing services to customers of the person or body; ‘officer’, in relation to a person that is a body corporate, means any person concerned in the direction or management of the body; ‘regulated business’ means a bureau de change business or a money transmission business; ‘this Part’ includes all regulations in force under this Part; ‘transmitting’ includes transmitting— (a) by means of a message or other form of communication, or (b) by means of a transfer instrument, or (c) by means of a clearing network.
\n
CHAPTER 2
\n
Regulation of bureaux de change and money transmission businesses Person prohibited from carrying on regulated business without authorisation.
\n
29.—(1) A person shall not carry on a regulated business unless the person is the holder of an authorisation.
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(2)A person who contravenes subsection (1) commits an offence and— (a) if tried summarily, is liable on conviction to a fine not exceeding €2,000, or (b) if tried on indictment, is liable on conviction to a fine not exceeding €100,000.
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(3)A person who, after being convicted of an offence under subsection (2), continues to contravene subsection (1) commits a further offence on each day or part of a day during which the contravention continues and— (a) if tried summarily, is liable on conviction to a fine not exceeding €200 for each such day or part of a day, or (b) if tried on indictment, is liable on conviction to a fine not exceeding €7,500 for each such day or part of a day.
\n
(4)This section does not have effect in relation to a person who carries on a money transmission business until 6 months after the commencement of section 27 of the Central Bank and Financial Services Authority of Ireland Act 2004.
\n
CHAPTER 3
\n
Authorisations to carry on regulated businesses Applications for authorisations.
\n
30.—(1) A person who wishes to carry on a regulated business can apply to the Bank for an authorisation to carry on such a business.
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(2)An application must— (a) be in a form provided or specified by the Bank, and (b) contain such information, and be accompanied by such documents, as the Bank requests, and (c) be accompanied by the fee (if any) prescribed under section 33K of the Central Bank Act 1942 for the purposes of this subsection.
\n
(3)The Bank may, by written notice given to an applicant, require the applicant to provide such additional information and documents as are reasonably necessary to enable it to determine the application. If such a requirement is not complied with within a period specified in the notice, not less than 14 days, the Bank may refuse the application.
\n
Grant and refusal of applications for authorisation.
\n
31.—(1) Except as provided by subsection (2), the Bank shall grant an application for an authorisation that complies with section 30.
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(2)The Bank may refuse an application for an authorisation that complies with section 30 only if it is of the opinion that— (a) to grant the application would be inconsistent with the effective enforcement of any law of the State the purpose of which is to prevent or inhibit money laundering or terrorism, or (b) the applicant has failed to satisfy the Bank that the applicant is, or will be, able to properly fulfil the obligations imposed on holders of authorisations by or under this Part, or (c) information given to the Bank by or on behalf of the applicant in connection with the application is materially false or misleading.
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(3)If the Bank proposes to refuse an application, it shall serve on the applicant a notice in writing— (a) specifying the grounds on which it is proposed to refuse the application, and (b) informing the applicant that the applicant may, within 21 days after the giving of the notice, make written representations to the Bank showing why the application should be granted.
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(4)Not later than 21 days after being given a notice under subsection (3), the applicant may make written representations to the Bank showing why the application should be granted.
\n
(5)The Bank may refuse an application only after having considered any representations made by the applicant in accordance with subsection (4).
\n
(6)If the Bank refuses an application, it shall immediately give to the applicant written notice of the refusal. The notice must include a statement setting out the reasons for the refusal.
\n
(7)On granting an application for an authorisation, the Bank shall— (a) record the appropriate particulars of the applicant in the register of persons authorised to carry on bureau de change businesses or money transmission businesses, and (b) issue the applicant with an authorisation authorising the applicant to carry on the regulated business to which the application relates.
\n
Effect and term of authorisation.
\n
32.—(1) An authorisation authorises the holder to carry on a regulated business subject to and in accordance with the conditions of the authorisation.
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(2)An authorisation remains in force until revoked under this Part.
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Bank may impose conditions when granting an application for an authorisation.
\n
33.—(1) In granting an application for an authorisation, the Bank may impose on the applicant such conditions as it considers necessary for the proper and orderly regulation of the applicant's business and, in particular, for preventing the business from being used to launder money or to finance terrorism.
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(2)If the Bank grants an application subject to conditions, it shall specify those conditions in the authorisation granted to the applicant or in one or more documents annexed to that authorisation.
\n
Bank may amend authorisation.
\n
34.—The Bank may from time to time amend an authorisation— (a) by varying any of its conditions, or (b) by replacing or revoking an existing condition, or (c) by adding a new condition, but only after giving to that holder a notice in writing of its intention to do so and an opportunity to be heard by, or to make written representations to, the Bank in relation to the proposed amendment.
\n
Offence to fail to comply with certain conditions and requirements.
\n
35.—(1) The holder of an authorisation shall comply with— (a) the requirements imposed on holders of authorisations by this Part, and (b) the conditions (if any) of the authorisation, and (c) the requirements (if any) imposed by regulations in force under this Part.
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(2)A person who fails to comply with subsection (1) commits an offence and— (a) if tried summarily, is liable on conviction to a fine not exceeding €2,000, or (b) if tried on indictment, is liable on conviction to a fine not exceeding €75,000.
\n
Revocation of authorisation by Bank on application of holder.
\n
36.—The Bank shall revoke an authorisation on the application of the holder of the authorisation, but only if satisfied that the holder of the authorisation has fully complied with the provisions of this Part and the conditions of the authorisation.
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Revocation of authorisation by Bank otherwise than on application of holder.
\n
36A.—(1) The Bank may revoke an authorisation on being satisfied on reasonable grounds that— (a) the holder of the authorisation has not begun to carry on a regulated business within 12 months after the date on which the authorisation was granted, or (b) the holder of the authorisation has not carried on such a business within the immediately preceding 6 months, or (c) the authorisation was obtained by means of a false or misleading representation, or (d) the holder of the authorisation has contravened or is contravening, or has failed or is failing to comply with a provision of this Part, a condition of the authorisation or a requirement imposed by or under this Part, or (e) if the holder of the authorisation is a natural person, the holder is adjudicated bankrupt, or (f) if the holder of the authorisation is a partnership, the partnership is dissolved by the death or bankruptcy of a partner or because of the operation of a provision of the Partnership Act 1890 , or (g) if the holder of the authorisation is a body corporate, the winding-up of the body has commenced, or (h) the holder of the authorisation is so structured, or business of the holder is so organised, that the holder is no longer capable of being regulated to the satisfaction of the Bank, or (i) the circumstances under which the authorisation was granted have changed to the extent that an application for authorisation would be refused had the application been made in the changed circumstances, or (j) the holder of the authorisation suspends payments due to creditors, or is unable to meet any other obligations to creditors of the holder, or (k) if the holder of the authorisation is a branch or subsidiary of a body corporate that has its head office in another country that is an EEA country, the authority of that other country that performs functions similar to those of the Bank under this Part has terminated the authority of that body to carry on a regulated business in that other country, or (l) the holder of the authorisation, or officer of that holder, is convicted of— (i) an offence against this Part or against any other designated enactment or designated statutory instrument, or (ii) an offence involving fraud, dishonesty, breach of trust, money laundering or financing terrorism.
\n
(2)If the Bank proposes to revoke an authorisation, it shall serve on the holder of the authorisation a notice in writing informing the holder of the Bank's intention to revoke the authorisation. The notice must— (a) specify the grounds on which it is proposed to revoke the authorisation, and (b) inform the holder of the authorisation that the holder may, within 21 days after service of the notice, make written representations to the Bank showing why the authorisation should not be revoked.
\n
(3)Not later than 21 days after a notice is served on the holder of an authorisation in accordance with subsection (2), the holder may make written representations to the Bank showing why the authorisation should not be revoked.
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(4)The Bank may revoke the authorisation only after having considered any representations made by the holder of the authorisation in accordance with subsection (3).
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(5)As soon as practicable after revoking an authorisation under this section, the Bank shall give written notice of the revocation to the person who was the holder of the authorisation. The notice must include a statement of the reasons for revoking the authorisation.
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(6)Revocation of an authorisation under this section takes effect on and from the date of the notice of revocation or, if a later date is specified in the notice, on and from that date, irrespective of whether an appeal against the revocation is made under Part VIIA of the Central Bank Act 1942 .
\n
Bank may direct holder of authorisation to suspend business.
\n
36B.—(1) If the Bank reasonably believes that there may be grounds for revoking an authorisation under section 36A, it may give to the holder of the authorisation a direction in writing prohibiting it from carrying on a regulated business otherwise than in accordance with conditions specified by the Bank.
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(2)A direction given under this section— (a) must include a statement of the Bank's reasons for giving the direction and specify the conditions with which the holder of the authorisation must comply, and (b) remains in force for such period (not exceeding 6 months) as is specified in the direction.
\n
(3)A direction takes effect from the date of the direction or, if a later date is specified in the direction, from that date, irrespective of whether or not the holder of the authorisation appeals against the direction.
\n
(4)The holder of an authorisation shall comply with a direction given under this section and the conditions (if any) contained in the direction.
\n
(5)The Bank may, by notice in writing given to the holder of the authorisation concerned, amend or revoke a direction given under this section.
\n
(6)Without limiting subsection (5), the Bank may from time to time, by notice in writing given to the holder of the authorisation concerned, extend the period during which a direction remains in force by a further period not exceeding 6 months.
\n
(7)A direction given under this section ceases to have effect— (a) at the end of the period specified in the direction, or if the period is extended under subsection (6), at the end of the extended period, or (b) on the revocation of the holder's authorisation under this Part, whichever first occurs.
\n
(8)A person who contravenes a direction given under this section, or fails to comply with a condition of the direction, commits an offence and— (a) if tried summarily, is liable on conviction to a fine not exceeding €2,000, or (b) if tried on indictment, is liable on conviction to a fine not exceeding €75,000.
\n
Bank to publish notice of revocation or suspension.
\n
36C.—As soon as practicable after revoking an authorisation under section 36 or 36A, or giving a direction under section 36B, the Bank shall publish in a publication of its choice a notice giving particulars of the revocation or direction.
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Bank to keep register of persons authorised to carry on regulated businesses.
\n
36D.—(1) The Bank is required to establish and keep a register of persons authorised to carry on regulated businesses.
\n
(2)The register must contain the name and the address of the principal place of business of each person authorised to carry on a regulated business and such other information as the Bank determines.
\n
(3)The register may be in book form, electronic form or such other form as the Bank determines from time to time. If the register is kept in an electronic form that is not visually readable, it must be capable of being reproduced in a visually readable form.
\n
(4)The Bank is to keep the register at its head office or at such other place as it specifies by notice published in Iris Oifigiúil.
\n
(5)Members of the public are entitled, without charge, to inspect the register during the ordinary business hours of the Bank.
\n
(6)A member of the public is entitled to obtain a copy of the register or of an entry in a register on payment of a fee of such amount (if any) as may be prescribed under section 33K of the Central Bank Act 1942 for the purposes of this subsection.
\n
Bank to publish list of persons authorised to carry on regulated businesses.
\n
36E.—The Bank shall, not less frequently than once during every period of 12 months after the commencement of this section, publish in a publication of its choice a list of persons authorised to carry on regulated businesses. If regulations in force under this Part so require, the list must contain such other particulars as are prescribed by those regulations.
\n
Holders of authorisations to keep certain records.
\n
36F.—(1) The holder of an authorisation shall— (a) keep at an office or offices within the State such records as may be specified from time to time by the Bank, and (b) notify the Bank in writing of the address of the office or offices where those records are kept.
\n
Different kinds of records may be specified under this subsection for different kinds of authorisations.
\n
(2)The requirement imposed by subsection (1) is additional to any other requirement imposed by law with respect to the keeping of records by the holder of an authorisation.
\n
(3)The holder of an authorisation shall keep the records referred to in subsection (1) for such period as the Bank notifies in writing to that holder.
\n
(4)The holder of an authorisation may keep documents wholly or partly in a non-legible form so long as they are capable of being reproduced in a legible form.
\n
CHAPTER 4
\n
Enforcement of this Part Appointment of inspectors.
\n
36G.—(1) The Bank may, in writing, appoint employees of the Bank or other suitably qualified persons to be inspectors for the purpose of securing compliance with this Part, or with any specified provisions of this Part.
\n
(2)The Bank may, in writing, revoke the appointment of an inspector whenever it considers it appropriate to do so.
\n
Powers of inspectors with respect to holders of authorisations.
\n
36H.—(1) An inspector may, at all reasonable times on production of evidence of the person's appointment, enter any premises at which the inspector reasonably believes that a regulated business is being carried on.
\n
(2)An inspector who has entered premises in accordance with subsection (1) may exercise all or any of the following powers: (a) inspect the premises; (b) request any person on the premises who apparently has control of, or access to, records that relate to a regulated business to produce the records for inspection; (c) inspect records produced in accordance with such a request or found in the course of inspecting the premises; (d) take copies of those records or of any part of them, and (e) request any person who appears to the authorised person to have information relating to the records, or to a regulated business, to answer questions with respect to the records or that business.
\n
(3)A person to whom a request is made in accordance with subsection (2) shall— (a) comply with the request so far as it is possible to do so, and (b) give such other assistance and information to the inspector with respect to the regulated business as is reasonable in the circumstances.
\n
(4)The powers conferred by subsection (2) may also be exercised in relation to any other person who, in the opinion of the Bank or an inspector, has information that is materially relevant to the exercise of those powers in relation to a regulated business.
\n
(5)The production of a record in compliance with a request made under this section does not prejudice a person's lien over the record.
\n
(6)Nothing in this section requires a legal practitioner to produce a record that contains a privileged communication made by or to the practitioner or to disclose any information that relates to the communication.
\n
(7)In this section— ‘legal practitioner’ means a barrister or solicitor; ‘suitably qualified person’ means any person (other than an employee of the Bank) who, in the opinion of the Bank, has the qualifications and experience necessary to exercise the powers conferred on inspectors by this section.
\n
Offence to obstruct inspectors in the exercise of their powers.
\n
36I.—A person who— (a) obstructs an inspector in the exercise of a power conferred on inspectors by this Part, or (b) without reasonable excuse, fails to comply with a requirement or request made by an inspector under this Part, or (c) in purported compliance with such a requirement or request, gives information that the person knows to be false or misleading, 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.
\n
Court may make enforcement orders.
\n
36J.—(1) If a person has engaged, is engaging or is about to engage in conduct that involved, involves or would involve— (a) contravening a provision of this Part, or (b) attempting to contravene such a provision, or (c) aiding, abetting, counselling or procuring a person to contravene such a provision, or (d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision, or (e) being in any way, directly or indirectly, knowingly concerned in, or a party to, the contravention by a person of such a provision, or (f) conspiring with others to contravene such a provision, the Court may make an order restraining the person from engaging in the conduct. The Court may include in the order a requirement that the person do a specified act.
\n
(2)If a person has refused or failed, is refusing or failing, or is about to refuse or fail, to do an act that the person is required to do by or under a provision of this Part, the Court may make an order requiring the person to do that act.
\n
(3)An order under this section may be made only on the application of the Bank or some other person whose interests have been, are or would be affected by the conduct or by the refusal or failure to do the act concerned.
\n
(4)The Court may hear an application for an order under this section only if it is satisfied that the person in relation to whom the order is sought has been served with a copy of the application at least 7 days before the hearing.
\n
(5)An order under this section may be made on such terms as the Court thinks appropriate.
\n
(6)The Court may grant an interim order pending the determination of an application under this section.
\n
(7)If the Bank applies to the Court to make an order under this section, the Court may not require the applicant or any other person to give an undertaking as to damages as a condition of granting an interim order.
\n
(8)The Court may discharge or vary an order made under this section.
\n
(9)The power of the Court to make an order restraining a person from engaging in conduct may be exercised— (a) whether or not it appears to the Court that the person intends to repeat, or to continue, the conduct, and (b) whether or not the person has previously engaged in that kind of conduct, and (c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in that kind of conduct.
\n
(10)The power of the Court to grant an injunction requiring a person to do an act may be exercised— (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act, and (b) whether or not the person has previously refused or failed to do that act, and (c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act.
\n
(11)Whenever the Court has power under this section to make an order restraining a person from engaging in particular conduct, or requiring a person to do a particular act, it may, either in addition to or instead of making such an order, order the person to pay damages to another person.
\n
Offences by persons concerned in management of bodies corporate.
\n
36K.—(1) If a body corporate commits an offence under this Part, each person who was, at the time the offence is found to have been committed, an officer of the body commits an offence, unless the person establishes that— (a) the body committed the offence without the person's knowledge, or (b) although the person did have that knowledge, the person took all reasonably practicable steps to prevent the commission of the offence.
\n
(2)A person may be charged with having committed an offence under this section even if the body corporate concerned is not charged with having committed an offence under this Part in relation to the same matter.
\n
(3)A person who is convicted of an offence under this section is— (a) if tried summarily, liable on conviction to a fine not exceeding €2,000 or to imprisonment for a term not exceeding 3 months, or both, or (b) if tried on indictment, liable on conviction to a fine not exceeding €50,000 or to imprisonment for a term not exceeding 12 months, or both.
\n
CHAPTER 5
\n
Supplementary provisions Decisions of Bank under this Part to be appealable decisions for purposes of Part VIIA of Central Bank Act 1942.
\n
36L.—The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942 : (a) the refusal of an application made under section 30; (b) the imposition of conditions on the granting of an authorisation (not being conditions prescribed by regulations in force under this Part); (c) the amendment of an authorisation under section 34; (d) the revocation of an authorisation under section 36A; (e) the giving of a direction under section 36B.
\n
Bank may make regulations for purposes of this Part.
\n
36M.—(1) The Bank may make regulations, not inconsistent with this Part, for or with respect to any matter that by this Part is required or permitted to be prescribed, or that is necessary or expedient to be prescribed, for carrying out or giving effect to this Part.
\n
(2)A regulation under section 33J or 33K of the Central Bank Act 1942 may require holders of authorisations to pay a levy or fee for the purposes of this Part, or both a levy and fee.
\n
(3)If a regulation under section 33J or 33K of the Central Bank Act 1942 imposes a requirement to pay a levy or fee to the Bank and the holder of an authorisation fails to pay the fee within the period, or by the date, specified in the regulation, the Bank may, by proceedings brought in a court of competent jurisdiction, recover the amount of the levy or fee from the holder as a debt due to the Bank.
\n
(4)A provision of a regulation under this section may— (a) apply generally or be limited in its application by reference to specified exceptions or factors, or (b) apply differently according to different factors of a specified kind, or (c) authorise any matter or thing to be from time to time determined, applied or regulated by a specified person or body, or may do any combination of those things.
\n
Performance and exercise of Bank's functions and powers to be consistent with performance of certain responsibilities of Governor.
\n
36N.—The Bank shall perform and exercise the functions and powers imposed or conferred on it by this Part in a manner consistent with the performance by the Governor of the responsibilities imposed on the Governor by section 19A of the Central Bank Act 1942 .”.
\n
Amendment of section 53 of Central Bank Act 1997 (Application of section 47 of Act of 1989).
\n
28.—
\n
Section 53
\n
of the Central Bank Act 1997 is amended by deleting “, 1942 to 1997”.
\n
Amendment of section 75 of Central Bank Act 1997 (Powers of inspection).
\n
29.—
\n
Section 75
\n
of the Central Bank Act 1997 (as amended by item 5 of
\n
Part 23
\n
of Schedule 1 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) is amended in subsection (8) by substituting the following definition for the definition of “responsible authority”: “ ‘responsible authority’ means the Chief Executive of the Irish Financial Services Regulatory Authority.”.
\n
Amendment of section 76 of Central Bank Act 1997 (Search and seizure).
\n
30.—
\n
Section 76
\n
of the Central Bank Act 1997 is amended by inserting the following subsection after subsection (2): “(3) In this section, ‘appropriate person’ has the same meaning as it has in section 75.”.
\n
Amendment of section 77 of Central Bank Act 1997 (Examination by Comptroller and Auditor General).
\n
31.—
\n
Section 77
\n
of the Central Bank Act 1997 is amended in subsection (1) by inserting “or constituent part” after “subsidiary”.
\n
Amendment of section 84 of Central Bank Act 1997 (Representative offices).
\n
32.—
\n
Section 84
\n
(5)of the Central Bank Act 1997 is amended by deleting “,1942 to 1997”.
\n
PART 4
\n
Amendment of other Legislation Miscellaneous amendments to other Acts administered by the Bank.
\n
33.—The Acts specified in Schedule 3 are amended as indicated in that Schedule.
\n
Amendment of European Communities Regulations administered by the Bank.
\n
34.—The Regulations specified in Schedule 4 are amended as indicated in that Schedule.
\n
Savings and transitional provisions.
\n
35.—The savings and transitional provisions set out in Schedule 5 have effect.
\n
SCHEDULE 1 Amendment of Acts Consequential on Insertion into Central Bank Act 1942 of Part IIIC
\n
Section 10
\n
(2).
\n
PART 1
\n
Amendment of Central Bank Act 1971 Item Provision affected Amendment 1.
\n
Section 21 (as substituted by
\n
section 38 of the Central Bank Act 1989 ) Substitute the following section: “Bank may give certain directions to holders of licences.
\n
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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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 .
\n
(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.”.
\n
PART 2
\n
Amendment of Insurance Act 1989 Item Provision affected Amendment 1.
\n
Section 18
\n
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 .
\n
(6)The Bank may from time to time vary or revoke a direction given under this section.”.
\n
2.
\n
Section 31
\n
Repeal subsections (2), (4), (5) and (7).
\n
3.
\n
Section 58
\n
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 .”.
\n
PART 3
\n
Amendment of Building Societies Act 1989 Item Provision affected Amendment 1.
\n
Section 10
\n
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.”.
\n
2.
\n
Section 14
\n
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 .”.
\n
3.
\n
Section 40
\n
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.”.
\n
4.
\n
Section 110
\n
(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 .”.
\n
5.
\n
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.”.
\n
6.
\n
Fifth Schedule Repeal the Schedule.
\n
PART 4
\n
Amendment of stock exchange act 1995 Item Provision affected Amendment 1.
\n
Section 10
\n
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 .”.
\n
2.
\n
Section 11
\n
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 .”.
\n
3.
\n
Section 14
\n
Substitute the following section for section 14:
\n
Bank may revoke approval of stock exchange.
\n
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.”.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(9)Nothing in subsection (8) affects an obligation under this Act of any of the members of the former approved stock exchange concerned.
\n
(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.
\n
(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.
\n
(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.
\n
(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 .
\n
(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.
\n
(15)A person who fails to comply with subsection (7) or (11) or contravenes subsection (12) commits an offence.”.
\n
4.
\n
Section 18
\n
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 .”.
\n
5.
\n
Section 20
\n
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 .”.
\n
6.
\n
Section 21
\n
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 .”.
\n
7.
\n
Section 22
\n
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 .”.
\n
8.
\n
Section 23
\n
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.
\n
(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 .”.
\n
9.
\n
Section 24
\n
Substitute the following section for section 24: “Bank may revoke authorisation of member firm.
\n
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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(10)Nothing in subsection (9) affects any obligation under this Act of any of the members of the former authorised member firm concerned.
\n
(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.
\n
(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.
\n
(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 .
\n
(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.
\n
(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.
\n
(16)A person who fails to comply with subsection (8) or (12) commits an offence.”.
\n
10.
\n
Section 29
\n
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.
\n
(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.”.
\n
11.
\n
Section 33
\n
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.”.
\n
12.
\n
Section 37
\n
Substitute the following section for section 37: “Bank may disqualify officers and employees of stock exchanges and member firms in certain circumstances.
\n
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.
\n
(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.
\n
(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.
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(4)A direction under this section must specify the date on which it is to take effect.
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(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.
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(6)Any person who accepts or continues in employment in contravention of a direction given under this section commits an offence.
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(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 .
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(8)The Bank may, by notice in writing given to the person concerned, revoke or vary a direction given under this section.”.
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13.
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Section 46
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Substitute the following section for section 46: “Decision of Bank with respect to acquiring transactions under section 40 to be appealable.
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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 .”.
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14.
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Section 70
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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)”.
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15.
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First Schedule Substitute the following Schedule for the First Schedule: “FIRST SCHEDULE
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Section 29.
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Supplementary Provisions in Relation to a Direction by the Bank under Section 29 Interpretation: First Schedule.
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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.
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Bank may revoke direction.
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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 .
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Effect of direction confirmed by Irish Financial Services Appeals Tribunal on appeal.
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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.
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(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.
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Bank may direct stock exchange or member firm to prepare scheme for termination of its business.
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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.
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Stock Exchange or member firm may appeal against direction of Bank.
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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 .
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Consequences of failing to comply with direction of Bank.
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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).
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(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.
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Bank may revoke or amend direction.
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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.
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Obligation of stock exchange or member firm when given a direction under section 29.
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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.
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(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.”.
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PART 5
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Amendment of Investment Intermediaries Act 1995 Item Provision affected Amendment 1.
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Section 10
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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 .”.
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2.
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Section 12
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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 .”.
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3.
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Section 13
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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 .”.
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4.
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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 .”.
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5.
\n
Section 14
\n
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 .”.
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6.
\n
Section 15
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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.
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(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 .”.
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7.
\n
Section 16
\n
Substitute the following section for section 16: “Supervisory authority may revoke authorisation in certain circumstances.
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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.
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(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);
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.