Credit Guarantee (Amendment) Act 2016

Credit Guarantee (Amendment) Act 2016 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2016 Credit Guarantee (Amendment) Act 2016 Credit Guarantee (Amendment) Act 2016 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Revised Act Acht Athbh… Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 1 of 2016 CREDIT GUARANTEE (AMENDMENT) ACT 2016 CONTENTS

PART 1

Preliminary and General Section

Section 1

Section 2

PART 2

Amendment of Principal Act

Section 3

Section 4

Section 5

Section 6

Section 7

Section 8

Section 9

PART 3

Counter Guarantees

Section 10

Section 11

Section 12

Section 13

Section 14

Section 15

Section 16

PART 4

Unrelated Miscellaneous Amendments to other Enactments

Section 17

Section 18

Section 19

Section 20

PART 1

Preliminary and General Short title, commencement and collective citation 1. (1) This Act may be cited as the Credit Guarantee (Amendment) Act 2016.

Part 4

) shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

Definitions 2. In this Act— “Minister” means the Minister for Jobs, Enterprise and Innovation; “Principal Act” means the Credit Guarantee Act 2012 .

PART 2

Amendment of Principal Act Amendment of section 1 of Principal Act 3. Section 1 of the Principal Act is amended— (a) by the insertion of the following definitions: “ ‘asset credit facility agreement’ means an agreement (other than a loan agreement or a credit facility agreement) under which a participating finance provider agrees to provide to a qualifying enterprise credit in the form of tangible movable property upon— (a) such date or dates as may be specified in the agreement, or (b) the happening of such event as may be so specified, in consideration of that qualifying enterprise agreeing to make payments to the participating finance provider on such date or dates, or the happening of such event as may be so specified, and ‘asset credit facility’ shall be construed accordingly; ‘cash price’ means, in relation to property provided pursuant to a qualifying finance agreement that is an asset credit facility agreement, the price that the participating enterprise would have been required to pay for the property if, at the time of the making of the agreement, that enterprise had elected to— (a) purchase the property, and (b) pay for the property in cash; ‘credit amount’ means— (a) in the case of a qualifying finance agreement that is a loan agreement, the principal of moneys borrowed from the participating finance provider by a participating enterprise pursuant to the agreement, (b) in the case of a qualifying finance agreement that is a credit facility agreement, the maximum amount (whether or not drawn down) of moneys agreed to be given or advanced by the participating finance provider to a participating enterprise, or to a third party nominated in that behalf by a participating enterprise, pursuant to the agreement, (c) in the case of a qualifying finance agreement that is an asset credit facility agreement, the cash price (specified in the agreement) of the property provided by the participating finance provider to a participating enterprise pursuant to the agreement, and (d) in the case of a qualifying finance agreement that is an invoice finance facility agreement, the maximum amount of moneys agreed to be given or advanced by the participating finance provider to a participating enterprise pursuant to the agreement, irrespective of whether that amount is given or advanced; ‘credit facility agreement’ means an agreement (other than a loan agreement) under which a participating finance provider agrees to give or advance to a qualifying enterprise, or to a third party nominated in that behalf by a qualifying enterprise, a sum or sums of money upon—

(a) such date or dates as may be specified in the agreement, or (b) the happening of such event as may be so specified, in consideration of that qualifying enterprise agreeing to repay to the participating finance provider the said sum or sums of money so given or advanced, and interest or charges (if any) thereon, on such date or dates as may be so specified, and ‘credit facility’ shall be construed accordingly; ‘finance agreement’ means— (a) a loan agreement, (b) a credit facility agreement, (c) an asset credit facility agreement, or (d) an invoice finance facility agreement; ‘finance provider’ means a person who, in the ordinary course of business— (a) provides financial products to qualifying enterprises, (b) arranges for the provision by other persons of financial products to qualifying enterprises, or (c) provides facilities for the provision on credit of goods or services by the person to qualifying enterprises, but does not include a person who is prohibited under the law of the State or any other state from engaging in any of the activities specified in the foregoing paragraphs, and references to the provision of a financial product shall be construed accordingly; ‘financial product’ means— (a) a loan, (b) a credit facility, (c) an asset credit facility, or (d) an invoice finance facility, provided to a qualifying enterprise under a finance agreement; ‘invoice finance facility agreement’ means an agreement under which a participating finance provider agrees to give or advance to a qualifying enterprise a sum or sums of money in consideration of that qualifying enterprise assigning to the participating finance provider the right to recover debts owed to that qualifying enterprise, and ‘invoice finance facility’ shall be construed accordingly; ‘participating enterprise’ means a qualifying enterprise— (a) belonging to a class to which a credit guarantee scheme applies, and (b) who has entered into a qualifying finance agreement with a participating finance provider; ‘participating finance provider’ shall be construed in accordance with section 2; ‘qualifying finance agreement’ means a finance agreement— (a) in respect of which there has been compliance with the conditions specified in a credit guarantee scheme under subsection (4) of section 5, (b) belonging to a class of finance agreement to which a credit guarantee scheme applies, (c) that is made for a purpose that does not contravene a provision of a credit guarantee scheme to which paragraph (c) of that subsection applies, and

(d) that does not permit a finance provider to exercise his or her powers under the finance agreement in such manner as would result in— (i) the value of the financial product provided under the agreement exceeding the maximum value specified under that subsection, (ii) the aggregate of the value of the financial products provided under a particular class of finance agreements with the qualifying enterprise concerned exceeding the maximum value so specified, or (iii) the aggregate of the value of the financial products provided under all qualifying finance agreements with the qualifying enterprise concerned exceeding the maximum value specified under that subsection;”, (b) in the definition of “loan agreement”— (i) by the substitution of “participating finance provider” for “participating lender” in each place where it occurs, and (ii) by the insertion of “, credit card facility or credit line facility” after “overdraft facility”, and (c) by the deletion of the definitions of— (i) “lender”, (ii) “EEA Agreement”, (iii) “EEA state”, (iv) “participating borrower”, (v) “participating lender”, and (vi) “qualifying loan agreement”.

Participating finance provider 4. The Principal Act is amended by the substitution of the following section for section 2: “2. (1) For the purposes of this Act, a finance provider is a participating finance provider if— (a) the finance provider is a person in respect of whom a certificate under subsection (2) has effect, and (b) the finance provider stands approved for the time being by the Minister in accordance with this section.

Power of Minister to give guarantees 5. The Principal Act is amended by the substitution of the following section for section 4: “4. (1) Subject to this section and section 12 of the Credit Guarantee (Amendment) Act 2016, the Minister may, in accordance with a credit guarantee scheme, enter into an agreement with a participating finance provider guaranteeing the due repayment or payment, as the case may be, to that participating finance provider of such part of the credit amount under a qualifying finance agreement as is specified in the first-mentioned agreement.

Amendment of section 5 of Principal Act 6. Section 5 of the Principal Act is amended— (a) in subsection (2) — (i) by the substitution of the following paragraph for paragraph (a): “(a) the giving of such information to the Minister, as he or she may reasonably require for the purposes of the granting of approval under section 2 or the making of an agreement under section 4;”, (ii) by the substitution, in paragraph (b), of “participating finance provider” for “participating lender” in each place where it occurs, (iii) by the substitution, in paragraph (c), of “participating finance provider” for “participating lender”, (iv) by the substitution of the following paragraph for paragraph (d): “(d) without prejudice to the generality of section 8(4), the method of payment of the premium under section 8 and the time or times at which the premium shall be paid;”, (v) by the substitution, in paragraph (e), of “participating finance providers” for “participating lenders”, (vi) by the substitution, in paragraph (f), of “finance providers” for “lenders”, and (vii) by the substitution, in paragraph (h), of “finance agreement” for “loan agreement”, (b) by the substitution of the following subsection for subsection (3): “(3) A scheme under this section shall specify conditions (in this Act referred to as ‘applicable conditions’), with which a finance provider shall, for the purposes of the granting of approval under section 2, comply, relating to— (a) the policies and practices of the finance provider as respects— (i) the provision of financial products generally, (ii) the provision of financial products to qualifying enterprises, (iii) the assessment of the credit risk or financial stability of qualifying enterprises, (iv) the recovery of sums owing to the finance provider by a qualifying enterprise or property provided to a qualifying enterprise by the finance provider under a qualifying finance agreement, and (v) the provision by qualifying enterprises of security for financial products provided to qualifying enterprises under qualifying finance agreements, (b) the sources from which the finance provider obtains his or her finance or funding, (c) the credit history of the finance provider and, in the case of certain classes of finance provider as may be specified in the scheme, a person who has, subject to subsection (6), a controlling interest in the finance provider, (d) the accounts and financial performance of the finance provider, (e) in the case of a finance provider referred to in paragraph (b) of the definition of ‘finance provider’, the payment by the finance provider of any moneys that may be received by that provider from the Minister pursuant to a guarantee under section 4 in respect of a qualifying finance agreement, to the person who provided the financial product to which that agreement relates,

(f) the administration and management of the finance provider, (g) the financial product or financial products to which the scheme applies, including— (i) the information and documentation to be provided by the finance provider to the Minister in relation to the provision of such financial products, (ii) the information and documentation to be provided by the finance provider to qualifying enterprises in relation to the provision of such financial products, and (iii) the interest, charges and other costs (if any) that may be applied in relation to the provision of such financial products to qualifying enterprises, (h) the procedures in relation to the supervision of finance agreements entered into on the finance provider’s behalf by members of staff of the finance provider, and (i) where applicable, the capital reserves of the finance provider, declared in a credit guarantee scheme to be conditions with which a finance provider shall comply before an approval in respect of that finance provider may be given under section 2.”, (c) by the substitution of the following subsection for subsection (4): “(4) A scheme under this section shall specify— (a) the class or classes of— (i) qualifying enterprise, (ii) finance provider, (iii) financial product, and (iv) finance agreement, to which the scheme shall apply, (b) the conditions that shall be complied with in relation to the entering into of a finance agreement by a participating finance provider with a qualifying enterprise, (c) the purposes for which moneys or other property received by qualifying enterprises pursuant to a finance agreement may be applied, (d) the maximum value or values of one or more financial products that may be provided to a qualifying enterprise under one or more finance agreements to which the scheme applies, and (e) the methodology referred to in section 8(1).”, and (d) by the insertion of the following subsections after subsection (4): “(5) (a) The Minister may require that any information referred to in subsection (2)(a) given to him or her by a person in compliance with a scheme under this section be attested as to the truth of the information by a statutory declaration made by that person. (b) The Minister may require that any document, information or report referred to in subsection (2)(f) given to him or her by a finance provider in compliance with a scheme under this section be attested as to the truth of the contents of the document or report or, as the case may be, as to the truth of the information, by a statutory declaration made by that finance provider.

Payment of premium to Minister by participating enterprise 7. The Principal Act is amended by the substitution of the following section for section 8: “8. (1) Subject to this section, a participating enterprise shall, in accordance with a credit guarantee scheme that applies to the enterprise and a qualifying finance agreement entered into by the enterprise with a participating finance provider, pay to the Minister an amount (in this section referred to as the ‘premium’) determined by the Minister in accordance with the methodology specified in the scheme for the purposes of making that determination.

Withdrawal of guarantee by Minister 8. The Principal Act is amended by the substitution of the following section for section 9: “9. (1) Where a participating finance provider fails or refuses to comply with the terms of a credit guarantee scheme, the Minister may withdraw any guarantee given by him or her in respect of any qualifying finance agreement to which that participating finance provider is a party.

Application of Part 9. The amendments to the Principal Act effected by this Part shall not apply in respect of— (a) the Credit Guarantee Scheme 2012 ( S.I. No. 360 of 2012 ), (b) the Credit Guarantee Scheme 2015 ( S.I. No. 48 of 2015 ), (c) any guarantees provided under either of those Schemes, or (d) any loan agreements to which either of those Schemes apply.

PART 3

Counter Guarantees Definitions 10. In this Part— “asset credit facility agreement” means an agreement (other than a loan agreement or a credit facility agreement) under which a finance provider agrees to provide to a qualifying enterprise credit in the form of tangible movable property upon— (a) such date or dates as may be specified in the agreement, or (b) the happening of such event as may be so specified, in consideration of that qualifying enterprise agreeing to make payments to the finance provider on such date or dates, or the happening of such event as may be so specified, and “asset credit facility” shall be construed accordingly; “counter guarantee agreement” has the meaning assigned to it in section 11

“participating PFI” means a promotional financial institution that has entered into a counter guarantee agreement and— (a) in relation to a counter guarantee agreement, means the promotional financial institution that has entered into that agreement, and (b) in relation to a counter guarantee scheme, means the promotional financial institution that has entered into the counter guarantee agreement to which that scheme is scheduled; “PFI guarantee scheme” means a scheme— (a) that is made and operated by a promotional financial institution, (b) that applies only to finance agreements entered into between finance providers and qualifying enterprises, and (c) in accordance with which the institution referred to in paragraph (a) may give guarantees in respect of agreements referred to in paragraph (b); “promotional financial institution” means— (a) the Strategic Banking Corporation of Ireland, or (b) a national promotional bank or institution within the meaning of Regulation (EU) 2015/1017 of the European Parliament and of the Council of 25 June 2015 on the European Fund for Strategic Investments, the European Investment Advisory Hub and the European Investment Project Portal and amending Regulations (EU) No 1291/2013 and (EU) No 1316/2013 - the European Fund for Strategic Investments1 ; “qualifying enterprise” shall be construed in accordance with section 3 of the Principal Act (and, accordingly, the reference in that section to “Act” includes this Part); “qualifying finance agreement” has the meaning assigned to it by section 1 of the Principal Act; “qualifying PFI guarantee agreement”, in relation to a qualifying PFI guarantee scheme, means a guarantee agreement entered into by a participating PFI in accordance with that scheme; “qualifying PFI guarantee scheme” means a PFI guarantee scheme— (a) in respect of which there has been compliance with the conditions specified in a counter guarantee scheme under subsection (4)(c) of section 13 , (b) belonging to a class of PFI guarantee scheme to which a counter guarantee scheme applies, (c) that is made for the purpose of promoting the provision of credit or additional credit to qualifying enterprises, and (d) that does not permit the promotional financial institution operating the PFI guarantee scheme to provide guarantees as would result in the maximum value referred to in subsection (4)(d) of section 13 , specified in the counter guarantee scheme referred to in paragraph (b), being exceeded.

Power of Minister to give counter guarantees 11. (1) Subject to this section and section 12 , the Minister may, in accordance with a counter guarantee scheme, enter into an agreement (in this Part referred to as a “counter guarantee agreement”) with a promotional financial institution guaranteeing the due repayment to that institution of such part, as is specified in the counter guarantee agreement, of moneys (excluding any interest and other charges) paid by that institution to finance providers pursuant to qualifying PFI guarantee agreements.

Monetary limit on Minister’s liability 12. The Minister shall not exercise the powers conferred on him or her by section 4 of the Principal Act or section 11 in such manner as would result in the aggregate of the Minister’s liability in respect of— (a) all qualifying finance agreements, to which guarantees under a credit guarantee scheme apply, entered into in any year, and (b) all qualifying PFI guarantee agreements, to which counter guarantees under a counter guarantee scheme apply, entered into in that same year, exceeding €15.6 million.

Counter guarantee schemes 13. (1) The Minister may, with the consent of the Minister for Finance and the Minister for Public Expenditure and Reform, make a scheme or schemes for the purposes of this Part.

Payment of premium to Minister by participating PFI 14. (1) Subject to this section, the participating PFI shall, in accordance with the counter guarantee scheme, pay to the Minister an amount (in this section referred to as the “premium”) determined by the Minister in accordance with the methodology specified in the scheme for the purposes of making that determination.

Review of counter guarantee scheme 15. The Minister may, at any time, conduct a review of the operation of a counter guarantee scheme and, not later than 2 months after completing such review, make a report in writing to each House of the Oireachtas of his or her findings and conclusions resulting from that review.

Expenses 16. The expenses incurred by the Minister in the administration of this Part shall, to such extent as may be sanctioned by the Minister for Finance, with the consent of the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

PART 4

Unrelated Miscellaneous Amendments to other Enactments Amendment of section 101 of Employment Equality Act 1998 17.

Section 101

of the Employment Equality Act 1998 is amended by the insertion of the following subsection: “(4A) (a) Where an employee refers— (i) a case or claim under section 77, and (ii) a claim for redress under the Act of 1977, to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977. (b) In this subsection— ‘Act of 1977’ means the Unfair Dismissals Act 1977 ; ‘dismissal’ has the same meaning as it has in the Act of 1977; ‘relevant date’ means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation.”.

Amendment of section 34 of National Minimum Wage Act 2000 18.

Section 34

of the National Minimum Wage Act 2000 is amended, in subsection (6) (inserted by section 52(1) of, and Part 1 of Schedule 7 to, the Workplace Relations Act 2015 ), by renumbering that subsection as subsection (7).

Amendment of Workplace Relations Act 2015 19. The Workplace Relations Act 2015 is amended— (a) in section 37, by the insertion of the following subsection: “(3) This section shall not apply in relation to an offence committed, or alleged to have been committed, before the commencement of this section.”, and (b) in Part 2 of Schedule 1, by the substitution of the following paragraph for paragraph 5: “5.

Section 26

Amendment of section 916 of Companies Act 2014 20.

Section 916

of the Companies Act 2014 is amended, in subsection (1), by the substitution of “section 915(1) ” for “section 915(2) ”.

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