(c) is not affiliated with another body corporate that— (i) has a physical presence, involving meaningful decision-making and management, in the jurisdiction in which it is incorporated, and (ii) is authorised to operate, and is subject to supervision, as a credit institution or an insurance undertaking, in the jurisdiction in which it is incorporated.
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Chapter 8
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Monitoring of designated persons Meaning of “competent authority”.
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60.— (1) Subject to section 61 , a reference in this Part to the competent authority for a designated person is a reference to the competent authority prescribed for the class of designated persons to which the designated person belongs.
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(2)If no such competent authority is prescribed, a reference in this Part to the competent authority is a reference to the following: (a) in the case of a designated person that is a credit institution or a financial institution, the Central Bank and Financial Services Authority of Ireland; (b) in the case of a designated person who is an auditor, external accountant, tax adviser or trust or company service provider— (i) if the person is a member of a designated accountancy body, the designated accountancy body, or (ii) if the person is not a member of a designated accountancy body and is a body corporate, or a body of unincorporated persons, carrying out its functions under this Part through officers, members or employees of it who are members of a designated accountancy body, the designated accountancy body; (c) in the case of a designated person who is a solicitor, the Law Society of Ireland; (d) in the case of a designated person who is a barrister, the General Council of the Bar of Ireland; (e) in the case of any designated person other than a designated person referred to in paragraph (a), (b), (c) or (d), the Minister.
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(3)The Minister may prescribe a competent authority for a class of designated persons, for the purpose of subsection (1), only if the Minister is satisfied that the competent authority is more appropriate than the competent authority specified in subsection (2) for the class of designated persons, having regard to the nature of the business activities engaged in by that class.
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Agreements between competent authorities where more than one applicable.
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61.— (1) Where there is more than one competent authority for a designated person under section 60 , those competent authorities may agree that one of them will act as the competent authority for that person, and references in this Part to a competent authority are to be construed accordingly.
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(2)An agreement under this section, in relation to a designated person, takes effect when the competent authority who has agreed to act as the competent authority for the designated person gives notice, in writing, to that person.
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(3)An agreement under this section, in relation to a designated person, ceases to have effect when— (a) any of the parties to the agreement gives notice, in writing, to the other parties of the termination of the agreement, (b) the agreement expires, or (c) as a result of the operation of section 60
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(1), the competent authority who has agreed to act as the competent authority is no longer a competent authority of the person under section 60 , whichever is the earliest.
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Meaning of “State competent authority”.
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62.— (1) In this Part, a reference to a State competent authority is a reference to one of the following competent authorities: (a) the Central Bank and Financial Services Authority of Ireland; (b) the Minister; (c) such other competent authority as is prescribed.
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(2)The Minister may prescribe a competent authority as a State competent authority for the purposes of subsection (1) (c) only if— (a) the Minister is satisfied that the competent authority is appropriate, having regard to the functions of State competent authorities under this Part, and (b) the competent authority is a Minister of the Government or an officer of a particular class or description of a Department of State or is a body (not being a company) by or under an enactment.
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General functions of competent authorities.
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63.— (1) A competent authority shall effectively monitor the designated persons for whom it is a competent authority and take measures that are reasonably necessary for the purpose of securing compliance by those designated persons with the requirements specified in this Part.
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(2)The measures that are reasonably necessary include reporting to the Garda Síochána and Revenue Commissioners any knowledge or suspicion that the competent authority has that a designated person has been or is engaged in money laundering or terrorist financing.
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(3)In determining, in any particular case, whether a designated person has complied with any of the requirements specified in this Part, a competent authority shall consider whether the person is able to demonstrate to the competent authority that the requirements have been met.
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(4)A competent authority that, in the course of monitoring a designated person under this section, acquires any knowledge or forms any suspicion that another person has been or is engaged in money laundering or terrorist financing shall report that knowledge or suspicion to the Garda Síochána and Revenue Commissioners.
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Application of other enactments.
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64.— Nothing in this Part limits any functions that a competent authority (including a State competent authority) has under any other enactment or rule of law.
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Annual reporting.
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65.— A competent authority shall include, in each annual report published by the authority, an account of the activities that it has carried out in performing its functions under this Act during the year to which the annual report relates.
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Request to bodies to provide names, addresses and other information relating to designated persons.
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66.— (1) In this section, a reference to relevant information, in relation to a person, that is held by a body is a reference to any of the following information that is held by the body: (a) the name, address or other contact details of the person; (b) any other prescribed information relating to the person.
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(2)A State competent authority may, by notice in writing, request any public body, or any body that represents, regulates or licenses, registers or otherwise authorises persons carrying on any trade, profession, business or employment, to provide the authority with any relevant information, in relation to— (a) any designated persons for whom the authority is a competent authority, or (b) any persons whom the body reasonably considers may be such designated persons.
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(3)A State competent authority may make a request under this section only in relation to information that is reasonably required by the authority to assist the authority in carrying out its functions under this Part.
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(4)Notwithstanding any other enactment or rule of law, a body that receives a request under this section shall disclose the relevant information concerned.
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(5)The Minister may prescribe information, for the purposes of subsection (1)(b), that a State competent authority may request under this section only if the Minister is satisfied that the information is appropriate, having regard to the functions of the State competent authority under this Part.
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Direction to furnish information or documents.
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67.— (1) A State competent authority may, by notice in writing, direct a designated person for whom the authority is a competent authority to provide such information or documents (or both) relating to the designated person specified in the notice.
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(2)A person who, without reasonable excuse, fails to comply with a direction under this section commits an offence and is liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both).
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(3)In giving a direction under this section, a State competent authority shall specify the manner in which any document or information is required to be furnished and a reasonable time by which the document or information is required to be furnished.
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(4)A person is required to furnish documents in accordance with this section only if the documents are in the person’s possession or within the person’s power to obtain lawfully.
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(5)If a person knows the whereabouts of documents to which the direction applies, the person shall furnish to the State competent authority who gave the direction a statement, verified by a statutory declaration, identifying the whereabouts of the documents. The person shall furnish the statement no later than the time by which the direction specifies that the documents are required to be furnished.
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(6)A person who, without reasonable excuse, fails to comply with subsection (5) commits an offence and is liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both).
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(7)If any document required to be furnished under this section is in electronic, mechanical or other form, the document shall be furnished in written form, unless the direction specifies otherwise.
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(8)A State competent authority may take copies of, or extracts from, any document furnished to the authority under this section.
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Direction to provide explanation of documents.
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68.— (1) A State competent authority may, by notice in writing, direct a designated person for whom the authority is a competent authority to furnish to the authority an explanation of any documents relating to the designated person that— (a) the person has furnished to the authority in complying with a direction under section 67 , or (b) an authorised officer has lawfully removed from premises under section 77 (including as applied by section 78 ).
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(2)In giving a direction under this section, a State competent authority shall specify the manner in which any explanation of a document is required to be furnished and a reasonable time by which the explanation is required to be furnished.
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(3)A person who, without reasonable excuse, fails to comply with a direction under this section commits an offence and is liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both).
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Purpose of direction under section 67 or 68.
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69.— A State competent authority may give a direction under section 67 or 68 only in relation to information or documents reasonably required by the authority to assist the authority to perform its functions under this Part.
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Self-incrimination (sections 67 and 68).
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70.— Nothing in section 67 or 68 requires a person to comply with a direction under the section concerned to furnish any information if to do so might tend to incriminate the person.
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Direction to designated person to comply with obligations under this Part.
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71.— (1) A State competent authority may, by notice in writing, direct a designated person for whom the authority is a competent authority to discontinue, or refrain from engaging in, specified conduct that in the opinion of the authority constitutes, or, if engaged in, would constitute, a breach of any specified provision of this Part.
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(2)The State competent authority shall specify in the direction a reasonable time by which the direction is to be complied with.
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(3)If the designated person fails to comply with the direction and is subsequently found guilty of an offence consisting of the conduct specified in the direction, the court shall take the failure to comply with the direction into account as an aggravating factor in determining any sentence to be imposed on the person for the offence.
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Appointment of authorised officers.
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72.— (1) A State competent authority may appoint employees of the authority or other persons who, in the opinion of the authority, are suitably qualified or experienced, to be authorised officers for the purpose of this Chapter.
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(2)A State competent authority may revoke any appointment made by the authority under subsection (1).
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(3)An appointment or revocation under this section shall be in writing.
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(4)A person’s appointment by a State competent authority as an authorised officer ceases— (a) on the revocation by the authority of the appointment, (b) in a case where the appointment is for a specified period, on the expiration of the period, (c) on the person’s resignation from the appointment, or (d) in a case where the person is an employee of the authority— (i) on the resignation of the person as an employee of the authority, or (ii) on the termination of the person’s employment with the authority for any other reason.
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Warrant of appointment.
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73.— (1) Every authorised officer appointed by a State competent authority shall be furnished with a warrant of appointment as an authorised officer by the State competent authority.
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(2)In the course of performing the functions of an authorised officer under this Chapter, the officer shall, if requested to do so by any person affected, produce the officer’s warrant of appointment for inspection.
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Powers may only be exercised for assisting State competent authority.
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74.— An authorised officer may exercise powers as an authorised officer under this Chapter only for the purpose of assisting the State competent authority that appointed the authorised officer in the performance of the authority’s functions under this Part.
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General power of authorised officers to enter premises.
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75.— (1) An authorised officer may enter any premises at which the authorised officer reasonably believes that the business of a designated person has been or is carried on.
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(2)An authorised officer may enter any premises at which the authorised officer reasonably believes records or other documents relating to the business of a designated person are located.
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(3)An authorised officer may enter premises under subsection (1) or (2)— (a) in a case where the authorised officer reasonably believes that the business of a designated person is carried on at the premises (as referred to in subsection (1)), at any time during which the authorised officer reasonably believes that the business is being carried on there, or (b) in any other case, at any reasonable time.
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Entry into residential premises only with permission or warrant.
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76.— Nothing in this Chapter shall be construed as empowering an authorised officer to enter any dwelling without the permission of the occupier or the authority of a warrant under section 78 .
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Power of authorised officers to do things at premises.
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77.— (1) An authorised officer may, at any premises lawfully entered by the officer, do any of the following: (a) inspect the premises; (b) request any person on the premises who apparently has control of, or access to, records or other documents that relate to the business of a designated person (being a designated person whose competent authority is the State competent authority who appointed the authorised officer)— (i) to produce the documents for inspection, and (ii) if any of those documents are in an electronic, mechanical or other form, to reproduce the document in a written form; (c) inspect documents produced or reproduced in accordance with such a request or found in the course of inspecting the premises; (d) take copies of those documents or of any part of them (including, in the case of a document in an electronic, mechanical or other form, a copy of the document in a written form); (e) request any person at the premises who appears to the authorised person to have information relating to the documents, or to the business of the designated person, to answer questions with respect to the documents or that business; (f) remove and retain the documents (including in the case of a document in an electronic, mechanical or other form, a copy of the information in a written form) for the period reasonably required for further examination; (g) request a person who has charge of, operates or is concerned in the operation of data equipment, including any person who has operated that equipment, to give the officer all reasonable assistance in relation to the operation of the equipment or access to the data stored within it; (h) secure, for later inspection, the premises or part of the premises at which the authorised officer reasonably believes records or other documents relating to the business of the designated person are located.
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(2)A person to whom a request is made in accordance with subsection (1) 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 authorised officer with respect to the business of the designated person concerned as is reasonable in the circumstances.
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(3)A reference in this section to data equipment includes a reference to any associated apparatus.
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(4)A reference in this section to a person who operates or has operated data equipment includes a reference to a person on whose behalf data equipment is operated or has been operated.
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Entry to premises and doing of things under warrant.
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78.— (1) A judge of the District Court may issue a warrant under this section if satisfied, by information on oath of an authorised officer, that there are reasonable grounds for believing that— (a) documents relating to the business of a designated person that are required for the purpose of assisting the State competent authority that appointed the authorised officer under this Chapter in the performance of the authority’s functions under this Part are contained on premises, and (b) the premises comprise a dwelling or an authorised officer has been obstructed or otherwise prevented from entering the premises under section 75 .
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(2)A warrant under this section authorises an authorised officer, at any time or times within one month of the issue of the warrant— (a) to enter the premises specified in the warrant, and (b) to exercise the powers conferred on authorised officers by this Chapter or any of those powers that are specified in the warrant.
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(3)Entry to premises the subject of a warrant may be effected with the use of reasonable force.
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Authorised officer may be accompanied by others.
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79.— An authorised officer may be accompanied, and assisted in the exercise of the officer’s powers (including under a warrant issued under section 78 ), by such other authorised officers, members of the Garda Síochána or other persons as the authorised officer reasonably considers appropriate.
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Offence to obstruct, interfere or fail to comply with request.
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80.— (1) A person commits an offence if the person, without reasonable excuse— (a) obstructs or interferes with an authorised officer in the exercise of the officer’s powers under this Chapter, or (b) fails to comply with a requirement, or request made by an authorised officer, under section 77 (including as applied by section 78 ).
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(2)A person who commits an offence under this section is liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both).
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(3)A reference in this section to an authorised officer includes a member of the Garda Síochána or other person who is accompanying and assisting the officer in accordance with section 79 .
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Self-incrimination — questions of authorised officers.
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81.— Nothing in this Chapter requires a person to answer questions if to do so might tend to incriminate the person.
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Production of documents or information not required in certain circumstances.
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82.— Nothing in this Chapter requires the production of any document or information subject to legal privilege.
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Disclosure or production not to be treated as breach or to affect lien.
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83.— (1) The disclosure or production of any information or document by a person in accordance with this Chapter shall not be treated as a breach of any restriction under any enactment or rule of law on disclosure or production by the person or any other person on whose behalf the information or document is disclosed or produced.
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(2)The production referred to in subsection (1) of any item forming part of the documents relating to the business of a designated person shall not prejudice any lien that the designated person or any other person claims over that item.
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Chapter 9
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Authorisation of Trust or Company Service Providers Interpretation (Chapter 9).
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84.— In this Chapter— “ Appeal Tribunal” means an Appeal Tribunal established under section 101 ; “authorisation” means an authorisation to carry on business as a trust or company service provider granted under this Chapter and, if such an authorisation is renewed or amended under this Chapter, means, unless the context otherwise requires, the authorisation as renewed or amended (as the case may be); “ principal officer” means— (a) in relation to a body corporate, any person who is a director, manager, secretary or other similar officer of the body corporate or any person purporting to act in such a capacity, or (b) in relation to a partnership— (i) any person who is a partner in, or a manager or other similar officer of, the partnership or any person purporting to act in such a capacity, and (ii) in a case where a partner of the partnership is a body corporate, any person who is a director, manager, secretary or other similar officer of such a partner or any person purporting to act in such a capacity; “trust or company service provider” does not include any of the following: (a) a member of a designated accountancy body; (b) a barrister or solicitor; (c) a credit institution or financial institution.
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Meaning of “fit and proper person”.
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85.— For the purposes of this Chapter, a person is not a fit and proper person if any of the following apply: (a) the person has been convicted of any of the following offences: (i) money laundering; (ii) terrorist financing; (iii) an offence involving fraud, dishonesty or breach of trust; (iv) an offence in respect of conduct in a place other than the State that would constitute an offence of a kind referred to in subparagraph (i), (ii) or (iii) if the conduct occurred in the State; (b) in a case where the person is an individual, the person is under 18 years of age; (c) the person— (i) has suspended payments due to the person’s creditors, (ii) is unable to meet other obligations to the person’s creditors, or (iii) is an individual who is an undischarged bankrupt; (d) the person is otherwise not a fit and proper person.
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Authorisations held by partnerships.
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86.— (1) A reference in a relevant document to the holder or proposed holder of an authorisation includes, in a case where the holder or proposed holder is a partnership, a reference to each partner of the partnership unless otherwise specified.
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(2)A reference in subsection (1) to a relevant document is a reference to any of the following: (a) this Chapter; (b) a regulation made for the purposes of this Chapter; (c) an authorisation or condition of an authorisation; (d) any notice or direction given under this Chapter; (e) any determination under this Chapter.
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(3)Without prejudice to the generality of subsection (1) or section 111 , where any requirement is imposed by or under this Chapter on the holder of an authorisation and failure to comply with the requirement is an offence, each partner of a partnership (being a partnership that is the holder of an authorisation) who contravenes the requirement is liable for the offence.
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Prohibition on carrying on business of trust or company service provider without authorisation.
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87.— (1) A person commits an offence if the person carries on business as a trust or company service provider without being the holder of an authorisation issued by the Minister under this Chapter.
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(2)A person who commits an offence under subsection (1) is liable— (a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 12 months (or both), or (b) on conviction on indictment, to a fine or imprisonment not exceeding 5 years (or both).
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Application for authorisation.
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88.— (1) An individual, body corporate or partnership may apply to the Minister for an authorisation to carry on business as a trust or company service provider.
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(2)The application shall— (a) be in a form provided or specified by the Minister, (b) specify the name of— (i) the proposed holder of the authorisation, (ii) in a case where the proposed holder of the authorisation is a body corporate or partnership or an individual who proposes to carry on business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be), and (iii) any person who is, or is proposed to be, a beneficial owner of the business, (c) be accompanied by any consent, in the form provided or specified by the Minister, that is required to enable access to personal data (within the meaning of the Data Protection Acts 1988 and 2003) held by other persons or bodies and that is required to assist the Minister in determining, for the purposes of section 89 (including as applied by section 92 ) whether or not the proposed holder and other persons referred to in paragraph (b) are fit and proper persons, (d) contain such other information, and be accompanied by such documents, as the Minister requests, (e) be accompanied by the prescribed fee (if any).
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(3)The Minister may, by written notice given to an applicant, require the applicant to provide, within the period of not less than 14 days specified in the notice, such additional information and documents as are reasonably necessary to enable the Minister to determine the application.
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(4)As soon as practicable after an applicant becomes aware that any information or document provided to the Minister under this section contains a material inaccuracy or has changed in any material particular, including information or a document provided in relation to an application that has been granted, but not including information or a document provided in relation to an application that has been refused, the applicant shall give notice in writing to the Minister of the error or change in circumstances, as the case may be.
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(5)For the purposes of subsection (2)(e) (including as applied by section 92 ), the Minister may prescribe different fees, to accompany applications for authorisations under this Chapter, for different classes of proposed holders of those authorisations and in prescribing such fees may differentiate between the fee to accompany such an application for an authorisation (not being an application for the renewal of such an authorisation) and the fee to accompany an application for the renewal of such an authorisation.
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Grant and refusal of applications for authorisation.
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89.— (1) The Minister may refuse an application under section 88 only if— (a) the application does not comply with the requirements of section 88 , (b) the applicant does not provide any additional documents or information in accordance with a notice given under section 88
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(3), (c) the Minister has reasonable grounds to be satisfied that information given to the Minister by the applicant in connection with the application is false or misleading in any material particular, (d) the Minister has reasonable grounds to be satisfied that any of the following persons is not a fit and proper person: (i) the proposed holder of the authorisation; (ii) in a case where the proposed holder of the authorisation is a body corporate or partnership or an individual who proposes to carry on business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be); (iii) any person who is, or is proposed to be, a beneficial owner of the business concerned, (e) the applicant has failed to satisfy the Minister that the proposed holder of the authorisation will comply with the obligations imposed on trust or company service providers, as designated persons, under this Part, (f) the applicant has failed to satisfy the Minister that the proposed holder of the authorisation will comply with each of the following: (i) any conditions that the Minister would have imposed on the authorisation concerned if the Minister had granted the application; (ii) any prescribed requirements referred to in section 94 ; (iii) section 95 ; (iv) section 98 ; (v) section 106 , (g) the proposed holder of the authorisation is so structured, or the business of the proposed holder is so organised, that the proposed holder is not capable of being regulated under this Chapter, or as a designated person under this Part, to the satisfaction of the Minister, (h) in a case where the proposed holder of the authorisation is a body corporate, the body corporate is being wound up, (i) in a case where the proposed 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 otherwise, (j) in a case where any person referred to in paragraph (d) has been authorised to carry on business as a trust or company service provider in another Member State, an authority of the other Member State that performs functions similar to those of the Minister under this Chapter has terminated the authority of the person to carry on business as a trust or company service provider in the other Member State, or (k) in a case where the proposed holder of the authorisation is a subsidiary of a body corporate that is authorised to carry on business as a trust or company service provider in another Member State, an authority of the other Member State that performs functions similar to those of the Minister under this Chapter has terminated the authority of the body corporate to carry on business as a trust or company service provider in the other Member State.
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(2)If the Minister proposes to refuse an application, the Minister shall serve on the applicant a notice in writing— (a) specifying the grounds on which the Minister proposes to refuse the application, and (b) informing the applicant that the applicant may, within 21 days after the serving of the notice, make written representations to the Minister showing why the Minister should grant the application.
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(3)Not later than 21 days after a notice is served on an applicant under subsection (2), the applicant may make written representations to the Minister showing why the Minister should grant the application.
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(4)The Minister may refuse an application only after having considered any representations made by the applicant in accordance with subsection (3).
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(5)As soon as practicable after refusing an application, the Minister shall serve a written notice of the refusal on the applicant. The notice shall include a statement— (a) setting out the grounds on which the Minister has refused the application, and (b) informing the applicant that— (i) the applicant may appeal to an Appeal Tribunal against the refusal, and (ii) if the applicant proposes to appeal to an Appeal Tribunal against the refusal, the applicant may, within one month after being served with the notice of refusal, serve a notice of intention to appeal on the Minister, in the form provided or specified by the Minister.
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(6)If the Minister does not refuse the application, he or she shall grant it and, on granting the application, the Minister shall— (a) record the appropriate particulars of the holder of the authorisation in the register of persons authorised to carry on business as a trust or company service provider, and (b) issue the applicant with an authorisation that authorises the holder of the authorisation to carry on business as a trust or company service provider.
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Minister may impose conditions when granting an application for an authorisation.
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90.— (1) In granting an application for an authorisation under this Chapter, the Minister may impose on the holder of the authorisation any conditions that the Minister considers necessary for the proper and orderly regulation of the holder’s business as a trust or company service provider and, in particular, for preventing the business from being used to carry out money laundering or terrorist financing.
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(2)The Minister shall specify any such conditions in the authorisation granted to the holder or in one or more documents annexed to that authorisation.
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(3)If, under this section, the Minister imposes any conditions on an authorisation, the Minister shall serve on the holder of the authorisation, together with the authorisation, a written notice of the imposition of the conditions that includes a statement— (a) setting out the grounds on which the Minister has imposed the conditions, and (b) informing the holder that— (i) the holder may appeal to an Appeal Tribunal against the imposition of any of the conditions, and (ii) if the holder proposes to appeal to an Appeal Tribunal against the imposition of any of the conditions, the holder may, within one month after being served with the notice of the imposition of conditions, serve a notice of intention to appeal on the Minister, in the form provided or specified by the Minister.
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Terms of authorisation.
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91.— (1) An authorisation comes into force on the day on which the authorisation is granted, or, if a later date is specified in the authorisation, on that later date, whether or not an appeal against any conditions of the authorisation is made under section 100 .
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(2)An authorisation remains in force, unless sooner revoked under this Chapter, for a period of 3 years from the date on which it comes into force.
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(3)A reference in this section to an authorisation does not include a reference to an authorisation that is renewed under section 92 .
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Renewal of authorisation.
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92.— (1) The Minister may renew an authorisation on the application of the holder of the authorisation unless the authorisation has been revoked under this Chapter.
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(2)Sections 88 to 90 apply, with any necessary modifications, in relation to an application for the renewal of an authorisation.
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(3)An application for the renewal of an authorisation shall be made not less than 10 weeks before the end of the period for which it was granted.
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(4)In addition to the grounds specified in section 89 (as applied by subsection (2)), the Minister may refuse to grant a renewed authorisation on the grounds that the application for renewal has been made less than 10 weeks before the end of the period for which the authorisation was granted.
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(5)If an application for the renewal of an authorisation is made within the time provided for in subsection (3) and is not determined by the Minister before the end of the period for which the authorisation was granted, the authorisation remains in force until the date on which the application is determined.
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(6)A renewed authorisation comes into force on— (a) in a case where subsection (5) applies, the date on which the application is determined, or (b) in any other case, the day immediately following the end of the period for which the authorisation that it renews was granted or last renewed, as the case may be.
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(7)A renewed authorisation, unless sooner revoked under this Chapter, remains in force for a period of 3 years from the date on which it comes into force under subsection (6).
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(8)Subsections (6) and (7) have effect whether or not an appeal against any conditions of the authorisation is made under section 100 .
\n
Minister may amend authorisation.
\n
93.— (1) The Minister may amend an authorisation granted under this Chapter by varying, replacing or revoking any conditions or by adding a new condition if the Minister considers that the variation, replacement, revocation or addition is necessary for the proper and orderly regulation of the business of the holder of the authorisation as a trust or company service provider and, in particular, for preventing the business from being used to carry out money laundering or terrorist financing.
\n
(2)If the Minister proposes to amend an authorisation under this section, the Minister shall serve on the holder of the authorisation a notice in writing informing the holder of the Minister’s intention to amend the authorisation.
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(3)The notice shall— (a) specify the proposed amendment, and (b) inform the holder that the holder may, within 21 days after service of the notice, make written representations to the Minister showing why the Minister should not make that amendment.
\n
(4)Not later than 21 days after a notice is served under subsection (2) on the holder of an authorisation, the holder may make written representations to the Minister showing why the Minister should not amend the authorisation.
\n
(5)The Minister may amend an authorisation only after having considered any representations to the Minister made in accordance with subsection (4) showing why the Minister should not amend the authorisation.
\n
(6)The Minister shall serve written notice of any amendment of an authorisation on the holder of the authorisation. The notice shall include a statement— (a) setting out the grounds on which the Minister has amended the authorisation, and (b) informing the holder that— (i) the holder may appeal to an Appeal Tribunal against the amendment, and (ii) if the holder proposes to appeal to an Appeal Tribunal against the amendment, the holder may, within one month after being served with the notice of amendment, serve a notice of intention to appeal on the Minister, in the form provided or specified by the Minister.
\n
(7)The amendment of an authorisation under this section takes effect from the date of the notice of amendment or, if a later date is specified in the notice, from that date, whether or not an appeal against the amendment is made under section 100 .
\n
Offence to fail to comply with conditions or prescribed requirements.
\n
94.— (1) The holder of an authorisation commits an offence if the holder fails to comply with— (a) any condition of the authorisation, or (b) any prescribed requirements.
\n
(2)A person who commits an offence under this section is liable— (a) on summary conviction, to a fine not exceeding €2,000, or (b) on conviction on indictment, to a fine not exceeding €100,000.
\n
(3)The Minister may prescribe requirements for the purposes of subsection (1)(b) only if the Minister is satisfied that it is necessary to do so for the proper and orderly regulation of the business of trust or company service providers and, in particular, for preventing such businesses from being used to carry out money laundering or terrorist financing.
\n
Holder of authorisation to ensure that principal officers and beneficial owners are fit and proper persons.
\n
95.— (1) The holder of an authorisation shall take reasonable steps to ensure that the following persons are fit and proper persons: (a) in a case where the holder of the authorisation is a body corporate, a partnership or an individual carrying on business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be); (b) any person who is a beneficial owner of the business concerned.
\n
(2)A person who commits an offence under this section is liable— (a) on summary conviction, to a fine not exceeding €2,000, or (b) on conviction on indictment, to a fine not exceeding €100,000.
\n
Revocation of authorisation by Minister on application of holder.
\n
96.— The Minister 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 each of the following: (a) any conditions of the authorisation; (b) any prescribed requirements referred to in section 94 ; (c) section 95 ; (d) section 98 ; (e) section 106 .
\n
Revocation of authorisation other than on application of holder.
\n
97.— (1) The Minister may revoke an authorisation only if the Minister has reasonable grounds to be satisfied of any of the following: (a) the holder of the authorisation has not commenced to carry on business as a trust or company service provider within 12 months after the date on which the authorisation was granted; (b) the holder of the authorisation has not carried on such a business within the immediately preceding 6 months; (c) the authorisation was obtained by means of a false or misleading representation; (d) any of the following persons is not a fit and proper person: (i) the holder of the authorisation; (ii) in a case where the holder of the authorisation is a body corporate, a partnership or an individual carrying on business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be); (iii) any person who is a beneficial owner of the business concerned; (e) the holder of the authorisation has contravened or is contravening the obligations imposed on trust or company service providers, as designated persons, under this Part; (f) the holder of the authorisation has contravened or is contravening any of the following: (i) a condition of the authorisation; (ii) a prescribed requirement referred to in section 94 ; (iii) section 95 ; (iv) section 98 ; (v) section 106 ; (g) the holder of the authorisation is so structured, or the business of the holder is so organised, that the holder is not capable of being regulated under this Chapter or as a designated person under this Part; (h) in a case where the holder of the authorisation is a body corporate, the body corporate is being wound up; (i) in a case where 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 otherwise; (j) in a case where any person referred to in paragraph (d) has been authorised to carry on business as a trust or company service provider in another Member State, an authority of the other Member State that performs functions similar to those of the Minister under this Chapter has terminated the authority of the person to carry on business as a trust or company service provider in the other Member State; (k) in a case where the holder of the authorisation is a subsidiary of a body corporate that is authorised to carry on business as a trust or company service provider in another Member State, an authority of the other Member State that performs functions similar to those of the Minister under this Chapter has terminated the authority of the body corporate to carry on business as a trust or company service provider in the other Member State.
\n
(2)If the Minister proposes to revoke an authorisation under this section, the Minister shall serve on the holder of the authorisation a notice in writing informing the holder of the Minister’s intention to revoke the authorisation.
\n
(3)The notice shall— (a) specify the grounds on which the Minister proposes to revoke the authorisation, and (b) inform the holder that the holder may, within 21 days after service of the notice, make written representations to the Minister showing why the Minister should not revoke the authorisation.
\n
(4)Not later than 21 days after a notice is served under subsection (2) on the holder of an authorisation, the holder may make written representations to the Minister showing why the Minister should not revoke the authorisation.
\n
(5)The Minister may revoke the authorisation only after having considered any representations made by the holder of the authorisation in accordance with subsection (4).
\n
(6)As soon as practicable after revoking an authorisation under this section, the Minister shall serve written notice of the revocation on the person who was the holder of the authorisation. The notice shall include a statement— (a) setting out the reasons for revoking the authorisation, and (b) informing the holder that— (i) the holder may appeal to an Appeal Tribunal against the revocation, and (ii) if the holder proposes to appeal to an Appeal Tribunal against the revocation, the holder may, within one month after being served with the notice of revocation, serve a notice of intention to appeal on the Minister in the form provided or specified by the Minister.
\n
(7)The revocation of an authorisation under this section takes effect from the date of the notice of revocation or, if a later date is specified in the notice, from that date, whether or not an appeal against the revocation is made under section 100 .
\n
Direction not to carry out business other than as directed.
\n
98.— (1) If the Minister reasonably believes that there may be grounds for revoking an authorisation under section 97 , the Minister may serve on the holder of the authorisation a direction in writing prohibiting the holder from carrying on business as a trust or company service provider other than in accordance with conditions specified by the Minister.
\n
(2)The Minister shall include in a direction under this section a statement— (a) setting out the Minister’s reasons for giving the direction, (b) informing the holder of the authorisation concerned that— (i) the holder may appeal to an Appeal Tribunal against the direction, and (ii) if the holder proposes to appeal to an Appeal Tribunal against the direction, the holder may, within one month after being served with the direction, serve a notice of intention to appeal on the Minister in the form provided or specified by the Minister, and (c) specifying the conditions with which the holder of the authorisation is required to comply.
\n
(3)The Minister may, by notice in writing served on the holder of the authorisation concerned, amend or revoke a direction given under this section.
\n
(4)Without prejudice to the generality of subsection (3), the Minister may, 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 or periods not exceeding 6 months.
\n
(5)A direction under this section takes effect from the date on which it is given or, if a later date is specified in the direction, from that date, whether or not an appeal against the direction is made under section 100 .
\n
(6)A direction under this section ceases to have effect— (a) at the end of the period, not exceeding 6 months, specified in the direction, or if the period is extended under subsection (4), at the end of the extended period, or (b) on the revocation of the holder’s authorisation under this Chapter, whichever occurs first.
\n
(7)A person who contravenes a direction given under this section, or fails to comply with a condition contained in the direction, commits an offence.
\n
(8)A person who commits an offence under this section is liable— (a) on summary conviction, to a fine not exceeding €5,000, or (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years (or both).
\n
Minister to publish notice of revocation or direction.
\n
99.— As soon as practicable after revoking an authorisation under section 96 or 97 , or giving a direction under section 98 , the Minister shall publish in Iris Oifigiúil a notice giving particulars of the revocation or direction.
\n
Appeals against decisions of Minister.
\n
100.— (1) In this section, “ appealable decision ” means a decision of the Minister under— (a) section 89 to refuse an application for an authorisation, (b) section 89 , as applied by section 92 , to refuse an application for the renewal of an authorisation, (c) section 90 to impose conditions on an authorisation, (d) section 90 , as applied by section 92 , to impose conditions on an authorisation that is renewed, (e) section 93 to amend an authorisation, (f) section 97 to revoke an authorisation, or (g) section 98 to serve a direction on the holder of an authorisation.
\n
(2)A person aggrieved by an appealable decision may, within one month after being served with notice of the decision, serve a notice of the person’s intention to appeal against the decision on the Minister in the form provided or specified by the Minister.
\n
(3)On receipt of the notification, the Minister shall refer the matter to an Appeal Tribunal established under section 101 .
\n
(4)The Appeal Tribunal may invite the person and the Minister to make written submissions to it in relation to the appeal.
\n
(5)The Appeal Tribunal shall notify the person, in writing, of the following matters: (a) the date and time of the hearing of the appeal; (b) that the person may attend the hearing; (c) that the person may be represented at the hearing by a barrister, solicitor or agent.
\n
(6)An Appeal Tribunal may refuse to hear, or continue to hear, an appeal under this section if it is of the opinion that the appeal is vexatious, frivolous, an abuse of process or without substance or foundation.
\n
(7)The Appeal Tribunal shall (unless the appeal is withdrawn, or discontinued or dismissed under subsection (6)) determine the appeal by— (a) affirming the decision of the Minister to which the appeal relates, or (b) substituting its determination for that decision.
\n
(8)The Appeal Tribunal shall notify its determination in writing to the Minister and the person appealing.
\n
(9)Within 3 months after the date on which an appeal is determined by an Appeal Tribunal, the Minister or person who appealed may appeal to the High Court on any question of law arising from the determination.
\n
Appeal Tribunals.
\n
101.— (1) The Minister may, by order, establish, for a specified period, an Appeal Tribunal or more than one Appeal Tribunal to adjudicate on appeals under section 100 .
\n
(2)An Appeal Tribunal shall be independent in the performance of its functions.
\n
(3)The Minister may appoint a person who is a practising barrister or solicitor of not less than 7 years’ standing to be a member of and constitute an Appeal Tribunal.
\n
(4)The appointment shall be subject to such terms and conditions, including remuneration, as the Minister may determine with the consent of the Minister for Finance.
\n
(5)A person constituting an Appeal Tribunal may at any time resign by a letter sent to the Minister, and the resignation shall take effect on the date on which the Minister receives the letter.
\n
(6)The Minister may, at any time, revoke an appointment of a person under this section for stated misbehaviour or if, in the opinion of the Minister, the person has become incapable through ill health or otherwise of effectively performing the functions of an Appeal Tribunal.
\n
(7)An Appeal Tribunal may determine its own procedure, subject to section 101 and to any general directions given to Appeal Tribunals by the Minister in the interests of securing consistency of procedures in relation to appeals under this Chapter.
\n
Provision of information by Garda Síochána as to whether or not person is fit and proper person.
\n
102.— (1) The Minister may request the Commissioner of the Garda Síochána to provide any information that is required to assist the Minister in determining, for the purposes of this Chapter, whether or not any of the following persons is a fit and proper person: (a) the holder or proposed holder of an authorisation; (b) in a case where the holder or proposed holder of the authorisation is a body corporate, a partnership or an individual carrying on, or proposing to carry on, business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be); (c) any person who is a beneficial owner of the business of the holder or proposed holder of the authorisation concerned.
\n
(2)Notwithstanding any other enactment or rule of law, the Commissioner of the Garda Síochána shall provide the Minister with information in accordance with a request of the Minister under this section.
\n
Extension of powers under Chapter 8 for purposes related to this Chapter.
\n
103.— (1) The functions of a State competent authority, in relation to designated persons, under
\n
Chapter 8
\n
, may be performed by the Minister to assist him or her in carrying out functions in relation to trust or company service providers under this Chapter.
\n
(2)For that purpose, sections 66 to 83 apply with any necessary modifications, including the following: (a) a relevant authorised officer has, in respect of trust or company service providers within the meaning of this Chapter, all of the functions that an authorised officer appointed by a State competent authority under section 72 has in respect of designated persons; (b) a judge of the District Court, in the case of an application under section 78 by a relevant authorised officer in respect of a trust or company service provider, has all of the functions that such a judge has, in the case of a similar application under that section by an authorised officer appointed by a State competent authority under section 72 , in respect of a designated person; (c) section 79 applies so as to enable a relevant authorised officer to be accompanied and assisted in the exercise of the officer’s powers as referred to in that section; (d) section 80 applies to a person who engages in conduct, referred to in that section, in relation to— (i) a relevant authorised officer, and (ii) any person accompanying and assisting the officer in accordance with section 79 as applied by paragraph (c).
\n
(3)This section has effect whether or not the Minister is the State competent authority for any class of trust or company service providers.
\n
(4)In this section “relevant authorised officer” means an authorised officer appointed by the Minister under section 72 , as applied by this section.
\n
Register of persons holding authorisations.
\n
104.— (1) The Minister shall establish and maintain a register of persons authorised under this Chapter to carry on business as a trust or company service provider containing— (a) the name and the address of the principal place of business of each person authorised to carry on business as a trust or company service provider, and (b) such other information as may be prescribed.
\n
(2)The register may be in book form, electronic form or such other form as the Minister may determine. The register may be maintained in an electronic, mechanical or other non-written form only if it is capable of being reproduced in a written form.
\n
(3)The Minister shall maintain the register at an office of the Department.
\n
(4)Members of the public are entitled, without charge, to inspect the register during the ordinary business hours of the Department.
\n
(5)A member of the public is entitled to obtain a copy of the register or of an entry in a register on payment of such reasonable copying charges as may be prescribed (if any).
\n
(6)The holder of an authorisation to whom an entry in the Register relates shall, as soon as practicable after the holder becomes aware of any error in the entry, or any change in circumstances that is likely to have a bearing on the accuracy of the entry, give notice in writing to the Minister of the error or change in circumstances, as the case may be.
\n
(7)In any legal proceedings, a certificate purporting to be signed by the Minister and stating that a person— (a) is recorded in the Register as the holder of an authorisation, (b) is not recorded in the Register as the holder of an authorisation, (c) was recorded in the Register as being, at a specified date or during a specified period, the holder of an authorisation, or (d) was not recorded in the Register as being, at a specified date or during a specified period, the holder of an authorisation, is evidence of the matter referred to in paragraph (a), (b), (c) or (d) (as the case may be), and is taken to have been signed by the person purporting to have signed it, unless the contrary is shown.
\n
(8)The Minister may prescribe particulars for the purposes of subsection (1) (b) or section 105 only if satisfied that those particulars reasonably relate to the business of trust or company service providers or to the regulation of the business of trust or company service providers under this Part.
\n
Minister to publish list of persons holding authorisations.
\n
105.— The Minister shall, not less frequently than once during every period of 12 months after the commencement of this section, publish in Iris Oifigiúil a list of persons holding authorisations, together with other prescribed particulars (if any).
\n
Holders of authorisations to retain certain records.
\n
106.— (1) The holder of an authorisation shall— (a) retain at an office or other premises in the State such records as may be specified by the Minister, and (b) notify the Minister in writing of the address of any office or other premises where those records are retained.
\n
(2)The requirement imposed by subsection (1) is in addition to, and not in substitution for, any other requirements imposed under any other enactment or rule of law with respect to the retention of records by the holder of an authorisation, including the requirements specified in section 55 .
\n
(3)The holder of an authorisation shall retain the records referred to in subsection (1) for a period of not less than 6 years after— (a) in the case of a record made in relation to a customer of the holder, the last dealing with the customer, or (b) in any other case, the record is made.
\n
(4)The holder of an authorisation may keep the records referred to in subsection (1) wholly or partly in an electronic, mechanical or other non-written form only if they are capable of being reproduced in a written form.
\n
(5)The obligations that are imposed on a holder of an authorisation under this section continue to apply to a person who has been the holder of an authorisation, but has ceased to hold an authorisation or to carry on business as a trust or company service provider.
\n
(6)A requirement for the holder of an authorisation that is a body corporate to retain any record under this section applies to any body corporate that is a successor to, or a continuation of, the body corporate.
\n
(7)The Minister may make regulations prescribing requirements relating to the retention of records referred to in this section of a body corporate that is wound up or a partnership that is dissolved.
\n
(8)A person who fails to comply with this section commits an offence and is liable— (a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years (or both).
\n
Chapter 10
\n
Other Guidelines.
\n
107.— (1) The Minister may, after consulting with the Minister for Finance, approve guidelines for the purpose of guiding designated persons on the application of this Part to those designated persons.
\n
(2)It is a defence to an offence under this Part for the defendant to prove that he or she took all reasonable steps and exercised all due diligence to avoid committing the offence.
\n
(3)In determining whether a defendant took all such reasonable steps and exercised all such due diligence, a court may have regard to any guidelines applying in relation to the person that have been approved by the Minister under this section and are in force, but nothing in this section limits the matters that a court may have regard to in determining whether a defendant took all reasonable steps and exercised all due diligence to avoid committing an offence.
\n
Minister may delegate certain functions under this Part.
\n
108.— (1) The Minister may, by instrument in writing, delegate any of the Minister’s functions under
\n
Chapter 8
\n
or 9, or under section 109 , to a named officer or an officer of a particular class or description.
\n
(2)A delegation under this section may be made subject to such conditions or limitations as to the performance of any of the functions delegated, or as to time or circumstance, as may be specified in the instrument of delegation.
\n
(3)The Minister may, by instrument in writing, revoke a delegation under this section.
\n
(4)A function delegated under this section may, while the delegation remains unrevoked, be performed by the delegate in accordance with the terms of the delegation.
\n
(5)The Minister may continue to perform any functions delegated under this section.
\n
(6)Nothing in this section shall be construed as affecting the application to this Act of the general law concerning the imputing of acts of an officer of a Minister of the Government to the Minister of the Government.
\n
(7)In this section, “officer” means an officer of the Minister who is an established civil servant for the purposes of the Civil Service Regulation Act 1956 .
\n
Registration of persons directing private members’ clubs.
\n
109.— (1) A person who is a designated person pursuant to section 25
\n
(1)(h) shall register with the Minister in accordance with suchprocedures as may be prescribed or otherwise imposed by the Minister.
\n
(2)A person who is required to register under this section commits an offence if the person fails to do so and is liable— (a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or (b) on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years (or both).
\n
(3)The following particulars shall be entered into a register established and maintained by the Minister for the purposes of this section: (a) the name of each designated person who registers under this section; (b) the name and address of the premises of the private members’ club in relation to which the person is a designated person; (c) any prescribed information as may be reasonably required by the Minister for the purposes of this Act.
\n
(4)The register may be in book form, electronic form or such other form as the Minister may determine. The register may be maintained in an electronic, mechanical or other non-written form only if it is capable of being reproduced in a written form.
\n
(5)The Minister shall maintain the register at an office of the Department.
\n
(6)The Minister may prescribe particulars for the purposes of subsection (3)(c) only if satisfied that those particulars reasonably relate to the business or regulation of persons directing members’ clubs as designated persons.
\n
PART 5
\n
Miscellaneous Service of documents.
\n
110.— (1) A notice or other document that is required or permitted, under this Act, to be served on or given to a person shall be addressed to the person by name and may be served or given to the person in one of the following ways: (a) by delivering it to the person; (b) by leaving it at the address at which the person ordinarily resides or carries on business; (c) by sending it by post in a pre-paid registered letter to the address at which the person ordinarily resides or carries on business; (d) if an address for service has been furnished, by leaving it at, or sending it by post in a pre-paid registered letter to, that address; (e) in the case of a direction to an individual or body (whether incorporated or unincorporated) under
\n
Part 3
\n
not to carry out any specified service or transaction at a branch or place of business of the body or individual, by leaving it at, or by sending it by post in a pre-paid registered letter to, the address of the branch or place of business (as the case may be); (f) if the person giving notice considers that notice should be given immediately and a fax machine is located at an address referred to in paragraph (b), (c), (d) or (e), by sending it by fax to that machine, but only if the sender’s fax machine generates a message confirming successful transmission of the total number of pages of the notice.
\n
(2)For the purposes of this section— (a) a company registered under the Companies Acts is taken to be ordinarily resident at its registered office, and (b) any body corporate other than a company registered under the Companies Acts or any unincorporated body is taken to be ordinarily resident at its principal office or place of business in the State.
\n
(3)Nothing in subsection (1)(e) prevents the serving or giving of a direction or other document for the purposes of
\n
Part 3
\n
under any other provision of this section.
\n
(4)This section is without prejudice to any mode of service or of giving a notice or any other document provided for under any other enactment or rule of law.
\n
(5)This section does not apply in relation to the service of a notice on the Minister referred to in section 100
\n
(2).
\n
Offences — directors and others of bodies corporate and unincorporated bodies.
\n
111.— Where an offence under this Act is committed by a body corporate or by a person purporting to act on behalf of a body corporate or on behalf of an unincorporated body of persons, and is proved to have been committed with the consent or connivance, or to be attributable to any wilful neglect, of a person who, when the offence is committed, is— (a) a director, manager, secretary or other officer of the body, or a person purporting to act in that capacity, or (b) a member of the committee of management or other controlling authority of the body, or a person purporting to act in that capacity, that person is taken to have also committed the offence and may be proceeded against and punished accordingly.
\n
Disclosure of information in good faith.
\n
112.— (1) This section applies to the disclosure in good faith, to a member of the Garda Síochána or to any person who is concerned in the investigation or prosecution of an offence of money laundering or terrorist financing, of— (a) a suspicion that any property has been obtained in connection with any such offence, or derives from property so obtained, or (b) any matter on which such a suspicion is based.
\n
(2)A disclosure to which this section applies shall not be treated, for any purpose, as a breach of any restriction on the disclosure of information imposed by any other enactment or rule of law.
\n
Amendment of Bail Act 1997.
\n
113.— The Schedule to the Bail Act 1997 is amended by inserting the following paragraph after paragraph 34 (inserted by section 48 of the Criminal Justice (Miscellaneous Provisions) Act 2009 ): “Money Laundering.
\n
35.Any offence under
\n
Part 2
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.”.
\n
Amendment of Central Bank Act 1942.
\n
114.— (1) In this section, “Act of 1942” means the Central Bank Act 1942 .
\n
(2)Section 33AK(5) (inserted by section 26 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) of the Act of 1942 is amended by deleting paragraph (n).
\n
(3)The Act of 1942 is amended by inserting the following after section 33AN (inserted by section 10 of the Central Bank and Financial Services Authority of Ireland Act 2004 ): “Application of Part to credit unions.
\n
33ANA.— (1) This Part applies in relation to— (a) the commission or suspected commission by a credit union of a contravention of— (i) a provision of
\n
Part 4
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, (ii) any direction given to the credit union under a provision of
\n
Part 4
\n
of that Act, (iii) any condition or requirement imposed on the credit union under a provision of
\n
Part 4
\n
of that Act or under any direction given to the credit union under a provision of that Part, or (iv) any obligation imposed on the credit union by this Part or imposed by the Regulatory Authority pursuant to a power exercised under this Part, and (b) participation, by a person concerned in the management of a credit union, in the commission by the credit union of such a contravention.
\n
(2)For those purposes— (a) a reference in this Part to a regulated financial service provider includes a reference to a credit union, (b) a reference in this Part to a prescribed contravention includes a reference to a contravention, by a credit union, of a provision, direction, condition, requirement or obligation referred to in subsection (1), and (c) a reference in this Part to a person concerned in the management of a regulated financial service provider includes a reference to a person concerned in the management of a credit union.
\n
(3)Nothing in this section limits the application of this Part in relation to matters other than those referred to in subsection (1).
\n
(4)This section has effect notwithstanding anything to the contrary in section 184 of the Credit Union Act 1997 .”.
\n
(4)Schedule 2 (substituted by section 31 of the Central Bank and Financial Services Authority of Ireland Act 2003 ) to the Act of 1942 is amended in Part 1 by inserting the following at the end of the Part: “ No. __ of 2010 Criminal Justice (Money Laundering and Terrorist Financing) Act 2010
\n
Part 4
\n
”.
\n
Amendment of Courts (Supplemental Provisions) Act 1961.
\n
115.— Section 32A(1) of the Courts (Supplemental Provisions) Act 1961 (inserted by section 180 of the Criminal Justice Act 2006 ) is amended as follows: (a) in paragraph (d) (inserted by section 18 of the Criminal Justice (Surveillance) Act 2009 ) by substituting “ Criminal Justice (Surveillance) Act 2009 ;” for “ Criminal Justice (Surveillance) Act 2009 .”; (b) by inserting the following paragraph after paragraph (d): “(e) any of the following powers under
\n
Part 3
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010: (i) the power to order a person not to carry out any service or transaction; (ii) the power to revoke an order referred to in subparagraph (i); (iii) the power to make an order in relation to property if considered essential to do so for the purpose of enabling— (I) the person who applies for the order to discharge the reasonable living and other necessary expenses incurred or to be incurred in respect of the person or the person’s dependants, or (II) the person who applies for the order to carry on a business, trade, profession or other occupation to which any of the property relates.”.
\n
Consequential amendment of Central Bank Act 1997.
\n
116.— Section 28 (substituted by section 27 of the Central Bank and Financial Services Authority of Ireland Act 2004 ) of the Central Bank Act 1997 is amended, in the definitions of “bureau de change business” and “money transmission service”, by substituting the following for paragraphs (a) and (b) of those definitions: “(a) by a person or body that is required to be licensed, registered or otherwise authorised by the Bank under a designated enactment (other than under this Part) or designated statutory instrument, or”.
\n
Consequential amendment of Criminal Justice Act 1994.
\n
117.— (1) In this section, “Act of 1994” means the Criminal Justice Act 1994 .
\n
(2)Section 3(1) of the Act of 1994 is amended in the definition of “ drug trafficking ” by substituting the following for paragraph (d): “(d) engaging in any conduct (whether or not in the State) in relation to property obtained, whether directly or indirectly, from anything done in relation to a controlled drug, being conduct that— (i) is an offence under
\n
Part 2
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (“
\n
Part 2
\n
of the Act of 2010”) or would have been an offence under that Part if the Part had been in operation at the time when the conduct was engaged in, or (ii) in the case of conduct in a place outside of the State, other than conduct referred to in subparagraph (i)— (I) would be an offence under
\n
Part 2
\n
of the Act of 2010 if done in corresponding circumstances in the State, or (II) would have been an offence under that Part if done in corresponding circumstances in the State and if the Part had been in operation at the time when the conduct was engaged in, or”.
\n
(3)Section 3(1) of the Act of 1994 is amended in the definition of “drug trafficking offence” by substituting the following for paragraph (e): “(e) an offence under
\n
Part 2
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, or under section 31 of this Act (as in force before the commencement of that Part), in relation to the proceeds of drug trafficking,”.
\n
Consequential amendment of Criminal Justice (Mutual Assistance) Act 2008.
\n
118.— Section 94(3) of the Criminal Justice (Mutual Assistance) Act 2008 is amended by substituting “
\n
Part 2
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010” for “ section 31 of the Criminal Justice Act 1994 , as substituted by section 21 of the Criminal Justice (Theft and Fraud Offences) Act 2001 ”.
\n
Consequential amendment of Criminal Justice (Theft and Fraud Offences) Act 2001.
\n
119.—
\n
Section 40
\n
(1)of the Criminal Justice (Theft and Fraud Offences) Act 2001 is amended by substituting the following for the definition of “money laundering”: “ ‘money laundering’ means an offence under
\n
Part 2
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010;”.
\n
Consequential amendment of Investor Compensation Act 1998.
\n
120.— (1) In this section, “Act of 1998” means the Investor Compensation Act 1998 .
\n
(2)Section 30(1) of the Act of 1998 is amended in the definition of “net loss” by substituting the following for subparagraph (iii): “(iii) money or investment instruments arising out of transactions in respect of which an offence has been committed under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (“Act of 2010”), (iv) money or investment instruments arising out of transactions in respect of which an offence has been committed under a provision of Part IV of the Criminal Justice Act 1994 prior to the repeal of that provision by the Act of 2010, (v) money or investment instruments arising out of transactions in respect of which an offence has been committed under a provision of section 57 or 58 of the Criminal Justice Act 1994 prior to the repeal of that provision by the Act of 2010, or (vi) money or investment instruments arising out of transactions in respect of which there has been a criminal conviction, at any time, for money laundering, within the meaning of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing 12 .”.
\n
(3)Section 35 of the Act of 1998 is amended by substituting the following for subsection (3): “(3) Notwithstanding the time limits provided for in subsections (1) and (2), the competent authority may direct the Company or a compensation scheme approved under section 25, as appropriate, to suspend any payment to an eligible investor, where the investor has been charged with any of the following offences, pending the judgment of a court in respect of the charge: (a) an offence under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (“Act of 2010”); (b) an offence committed, prior to the repeal by the Act of 2010 of any of the following provisions of the Criminal Justice Act 1994 , under that provision: (i) a provision of Part IV; (ii) section 57; (iii) section 58; (c) an offence otherwise arising out of, or relating to, money laundering, within the meaning of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing 13 .”.
\n
Consequential amendment of Taxes Consolidation Act 1997.
\n
121.— (1) In this section, “Act of 1997” means the Taxes Consolidation Act 1997 .
\n
(2)Section 898F (substituted by section 90 of, and Schedule 4 to, the Finance Act 2004 ) of the Act of 1997 is amended as follows: (a) in subsection (3) by substituting “which is acceptable for the purposes of
\n
Chapter 3
\n
of
\n
Part 4
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010” for “it acquires by virtue of section 32 of the Criminal Justice Act 1994 ”; (b) in subsection (4) by substituting “which is acceptable for the purposes of
\n
Chapter 3
\n
of
\n
Part 4
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010” for “it acquires by virtue of section 32 of the Criminal Justice Act 1994 ”; (c) in subsection (5)(a) (substituted by section 124
\n
(1)(a) of the Finance Act 2006 ) by inserting “(or has done so, before the relevant commencement date, in accordance with this section as in force before that date)” after “in accordance with this section”; (d) by inserting the following paragraph after subsection (6)(a): “(aa) A paying agent who— (i) before the relevant commencement date, established the identity and residence of an individual under this section as in force before that date, and (ii) was required, immediately before the relevant commencement date and as a result of paragraph (a), to continue to treat that individual as so identified and so resident, shall continue to treat that individual as so identified and so resident until such time as the paying agent is in possession, or aware, of information which can reasonably be taken to indicate that the individual has been incorrectly identified or is not so resident or has changed his or her residence.”; (e) in subsection (6)(b) by inserting “or (aa)” after “paragraph (a)”; (f) in subsection (7) by inserting “(or as established, before the relevant commencement date, in accordance with this section as in force before that date)” after “this section”; (g) by inserting the following subsection after subsection (7): “(8) In this section, ‘relevant commencement date’ means the date on which section 121
\n
(2)of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 comes into operation.”.
\n
(3)Section 898G (substituted by section 90 of, and Schedule 4 to, the Finance Act 2004 ) of the Act of 1997 is amended as follows: (a) in subsection (2) by substituting “
\n
Chapter 3
\n
of
\n
Part 4
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010” for “ section 32 of the Criminal Justice Act 1994 ”; (b) in subsection (4)(b) by substituting “
\n
Chapter 3
\n
of
\n
Part 4
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010” for “ section 32 of the Criminal Justice Act 1994 ”; (c) in subsection (5)(b)(iii) by substituting “
\n
Chapter 3
\n
of
\n
Part 4
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010” for “ section 32 of the Criminal Justice Act 1994 ”; (d) in subsection (6)(a) (substituted by section 124(1)(b) of the Finance Act 2006 ) by inserting “(or has done so, before the relevant commencement date, in accordance with this section as in force before that date)” after “in accordance with this section”; (e) by inserting the following paragraph after subsection (8)(a): “(aa) A paying agent who— (i) before the relevant commencement date, established the identity and residence of an individual under this section as in force before that date, and (ii) was required, immediately before the relevant commencement date and as a result of paragraph (a), to continue to treat that individual as so identified and so resident, shall continue to treat that individual as so identified and so resident until such time as the paying agent is in possession, or aware, of information which can reasonably be taken to indicate that the individual has been incorrectly identified or is not so resident or has changed his or her residence.”; (f) in subsection (8)(b) by inserting “or (aa)” after “paragraph (a)”; (g) in subsection (9) by inserting “(or as established, before the relevant commencement date, in accordance with this section as in force before that date)” after “this section”; (h) by inserting the following subsection after subsection (9): “(10) In this section, ‘relevant commencement date’ means the date on which section 121
\n
(3)of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 comes into operation.”.
\n
Consequential amendment of Taxi Regulation Act 2003.
\n
122.— Section 36(1)(f) of the Taxi Regulation Act 2003 is amended by substituting “
\n
Part 2
\n
of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010” for “Part IV of the Criminal Justice Act 1994 ”.
\n
SCHEDULE 1 REVOCATIONS OF STATUTORY INSTRUMENTS
\n
Section 4
\n
.
\n
Title of Instrument
\n
(1)Number and Year
\n
(2)Extent of Revocation
\n
(3)Criminal Justice Act 1994 (Section 32(10)(a)) Regulations 1995 S.I. No. 104 of 1995 The whole Regulations.
\n
Criminal Justice Act 1994 (Section 32(10)(b)) Regulations 1995 S.I. No. 105 of 1995 The whole Regulations.
\n
Criminal Justice Act 1994 (Section 32(10)(d)) Regulations 1995 S.I. No. 106 of 1995 The whole Regulations.
\n
Criminal Justice Act 1994 (Section 32(10)(b)) (No. 2) Regulations 1995 S.I. No. 324 of 1995 The whole Regulations.
\n
Criminal Justice Act 1994 (Section 32(10)(a)) Regulations 2003 S.I. No. 216 of 2003 The whole Regulations.
\n
Criminal Justice Act 1994 (Section 32) Regulations 2003 S.I. No. 242 of 2003 The whole Regulations.
\n
Criminal Justice Act 1994 (Section 32) (Amendment) Regulations 2003 S.I. No. 416 of 2003 The whole Regulations.
\n
Criminal Justice Act 1994 (Section 32) (Prescribed States or Countries) Regulations 2003 S.I. No. 618 of 2003 The whole Regulations.
\n
Criminal Justice Act 1994 (Section 32) (Prescribed Activities) Regulations 2004 S.I. No. 3 of 2004 The whole Regulations.
\n
Criminal Justice Act 1994 (Section 32) (Prescribed States or Countries) Regulations 2004 S.I. No. 569 of 2004 The whole Regulations.
\n
SCHEDULE 2 ANNEX I TO RECAST BANKING CONSOLIDATION DIRECTIVE LIST OF ACTIVITIES SUBJECT TO MUTUAL RECOGNITION
\n
Section 24
\n
.
\n
1.Acceptance of deposits and other repayable funds.
\n
2.Lending including, inter alia: consumer credit, mortgage credit, factoring, with or without recourse, financing of commercial transactions (including forfeiting).
\n
3.Financial leasing.
\n
4.Payment services as defined in Article 4(3) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market 14 .
\n
5.Issuing and administering other means of payment (e.g. travellers’ cheques and bankers’ drafts) insofar as this activity is not covered by point 4.
\n
6.Guarantees and commitments.
\n
7.Trading for own account or for account of customers in: (a) money market instruments (cheques, bills, certificates of deposit, etc.); (b) foreign exchange; (c) financial futures and options; (d) exchange and interest — rate instruments; or (e) transferable securities.
\n
8.Participation in securities issues and the provision of services related to such issues.
\n
9.Advice to undertakings on capital structure, industrial strategy and related questions and advice as well as services relating to mergers and the purchase of undertakings.
\n
10.Money broking.
\n
11.Portfolio management and advice.
\n
12.Safekeeping and administration of securities.
\n
13.Credit reference services.
\n
14.Safe custody services.
\n
15.Issuing electronic money.
\n
The services and activities provided for in Sections A and B of Annex I to Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments 15 , when referring to the financial instruments provided for in Section C of Annex I of that Directive, are subject to mutual recognition according to this Directive.
\n
1 OJ L 214, 4.8.2006, p. 29 2 OJ L 309, 25.11.2005, p.15 3 OJ L 319, 5.12.2007, p.1 4 OJ L 267, 10.10.2009, p.7 5 OJ L 267, 10.10.2009, p.7 6 OJ L 35, 11.2.2003, p. 1 7 OJ L 9, 15.1.2003, p. 3 8 OJ L 345, 19.12.2002, p. 1 9 OJ L 145, 30.4.2004, p. 1 10 OJ L 319, 5.12.2007, p.1 11 OJ L 177, 30.6.2006, p.1 12 OJ L 309, 25.11.2005, p.15 13 OJ L 309, 25.11.2005, p.15 14 OJ L 319, 5.12.2007, p.1 15 OJ L 145, 30.4.2004, p.1. Directive as amended by Directive 2006/31/EC (OJ L 114, 27.4.2006, p. 60).
\n
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