(3)The report mentioned in subsection (2)(c) shall state whether, in the independent person’s opinion, based on the information and explanations given to him or her, the opinion of the general partner mentioned in subsection (1) and the statement of the migrating partnership’s or exiting partnership’s assets and liabilities referred to in subsection (2)(b), are reasonable.
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(4)For the purposes of subsection (3), the independent person shall be a person who, at the time the report is made, is— (a) in the case of an application under Chapter 1, qualified to be the auditor of the migrating partnership under the laws of the relevant jurisdiction, and (b) in the case of an application under Chapter 2, qualified to be the auditor of the exiting partnership.
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(5)A general partner who makes a declaration under this section without having reasonable grounds for the opinion that the migrating partnership or exiting partnership, as appropriate, is able to pay its debts as they fall due shall be guilty of an offence.
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(6)Where the migrating partnership or exiting partnership is wound up within 1 year after the date on which the application is made to the Bank under Chapter 1 or 2 and its debts are not paid or provided for in full within that year, it shall be presumed, unless the contrary is shown, that the general partner referred to in subsection (1) did not have reasonable grounds for his or her opinion.”.
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Umbrella investment limited partnerships 41. The Act of 1994 is amended by the insertion of the following Schedule after section 67: “SCHEDULE Umbrella Investment Limited Partnerships Definitions 1. In this Schedule— ‘sub-fund’ means a separate portfolio of assets maintained by a general partner of an investment limited partnership for and on behalf of one or more limited partners in accordance with the partnership agreement; ‘umbrella fund’ means an investment limited partnership which is divided into a number of sub-funds.
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General 2. Where an investment limited partnership is established as an umbrella fund, the assets shall belong exclusively to the partners holding interests in a relevant sub-fund and shall not be used to discharge directly or indirectly the liabilities of, or claims against, any other sub-fund and shall not be available for any such purpose. The general partner may in its absolute discretion operate, establish or designate classes of interest with differing rights and obligations for accounting purposes or otherwise within the investment limited partnership.
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Segregated liability of investment limited partnership sub-funds 3. (1) Notwithstanding any statutory provision or rule of law to the contrary— (a) any liability incurred on behalf of or attributable to any sub-fund of an umbrella fund shall be discharged solely out of the assets of that sub-fund, and (b) no umbrella fund nor any general partner, limited partner, receiver, liquidator, provisional liquidator or other person shall apply, nor be obliged to apply, the assets of any such sub-fund in satisfaction of any liability incurred on behalf of or attributable to any other sub-fund of the same umbrella fund.
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(2)The general partner of an umbrella fund to which this Schedule applies shall— (a) ensure that the words ‘An umbrella fund with segregated liability between sub-funds’ are included in all its letterheads and in any agreement entered into on its behalf in writing with a third party, and (b) disclose to a third party that it is a segregated liability umbrella fund before the general partner enters into an oral contract with the third party.
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(3)If the general partner of an umbrella fund fails to comply with subparagraph (2)(a) or (b), the general partner and any officer of it who is in default shall be guilty of an offence.
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(4)There shall be implied in every contract, agreement, arrangement or transaction entered into on behalf of an umbrella fund to which this Schedule applies the following terms, that: (a) the party or parties contracting with respect to the umbrella fund shall not seek, whether in any proceedings or by any other means whatsoever or wheresoever, to have recourse to any assets of any sub-fund of the umbrella fund in the discharge of all or any part of a liability which was not incurred on behalf of that sub-fund; (b) if any party contracting with respect to the umbrella fund shall succeed by any means whatsoever or wheresoever in having recourse to any assets of any sub-fund of the umbrella fund in the discharge of all or any part of a liability which was not incurred on behalf of that sub-fund, that party shall be liable to the umbrella fund to pay a sum equal to the value of the benefit thereby obtained by it; and (c) if any party contracting with respect to the umbrella fund shall succeed in seizing or attaching by any means, or otherwise levying execution against, any assets of a sub-fund of an umbrella fund in respect of a liability which was not incurred on behalf of that sub-fund, that party shall hold those assets or the direct or indirect proceeds of the sale of such assets on trust for the umbrella fund and shall keep those assets or proceeds separate and identifiable as such trust property.
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(5)All sums recovered by an umbrella fund as a result of any such trust as is described in subparagraph (4)(c) shall be credited against any concurrent liability pursuant to the implied term set out in subparagraph (4)(b).
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(6)Any asset or sum recovered by an umbrella fund pursuant to the implied term set out in clause (b) or (c) of subparagraph (4) or by any other means whatsoever or wheresoever in the events referred to in those clauses shall, after the deduction or payment of any costs of recovery, be applied so as to compensate the sub-fund affected.
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(7)In the event that assets attributable to a sub-fund to which this Schedule applies are taken in execution of a liability not attributable to that sub-fund, and in so far as such assets or compensation in respect thereof cannot otherwise be restored to that sub-fund affected, the general partner of the umbrella fund, with the consent of the depositary, shall certify or cause to be certified, the value of the assets lost to the sub-fund affected and transfer or pay from the assets of the sub-fund or sub-funds to which the liability was attributable, in priority to all other claims against such sub-fund or sub-funds, assets or sums sufficient to restore to the sub-fund affected, the value of the assets or sums lost to it.
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Further matters respecting an umbrella fund 4. (1) Without prejudice to the other provisions of this Schedule, a sub-fund of an umbrella fund is not a legal person separate from that umbrella fund, but the general partner of an umbrella fund may sue and be sued in respect of a particular sub-fund and may exercise the same rights of set-off, if any, as between its sub-funds as apply at law in respect of companies and the property of a sub-fund is subject to orders of the court as it would have been if the sub-fund were a separate legal person.
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(2)Nothing in this paragraph or any other provision of this Schedule shall prevent the application of any enactment or rule of law which would require the application of the assets of any sub-fund in discharge of some or all of the liabilities of any other sub-fund on the grounds of fraud or misrepresentation.”.
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PART 3
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Amendment of Act of 2015 Amendment of section 2 of Act of 2015 - insertion of definition of “category 4 offence”
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42.Section 2 of the Act of 2015 is amended by the insertion of the following definition after the definition of “category 3 offence”: “ ‘category 4 offence’ means an offence the penalties for which are specified in section 186(4);”.
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Amendment of Act of 2015 - new section 2A relating to ordinary and special resolutions 43. The Act of 2015 is amended by the insertion of the following section after section 2: “Supplemental interpretation provisions regarding ordinary and special resolutions 2A. (1) With respect to any question that may arise, during, or for the purposes of, any proceedings of a sub-fund or a class of members, as to whether any applicable requirement, whether arising under the instrument of incorporation of the ICAV concerned or otherwise, for— (a) a resolution to be passed as an ‘ordinary resolution’ by that sub-fund or class, or (b) a resolution to be passed as a ‘special resolution’ by that sub-fund or class, has been satisfied, subsection (2) or, as appropriate, subsection (3) shall have effect.
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(2)For the purposes of subsection (1)(a), a resolution passed by a simple majority of the votes cast by the members of the sub-fund or, as appropriate, of the class as, being entitled to do so, vote in person or by proxy at the general meeting concerned of the sub-fund or the meeting concerned of the class of members shall be regarded as an ordinary resolution.
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(3)For the purposes of subsection (1)(b), a resolution passed by not less than 75 per cent of the votes cast by the members of the sub-fund or, as appropriate, of the class as, being entitled to do so, vote in person or by proxy at the general meeting concerned of the sub-fund or the meeting concerned of the class of members shall be regarded as a special resolution.”.
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Amendment of sections 5 and 6 of Act of 2015 44. (1) Section 5 of the Act of 2015 is amended by the substitution of the following subsections for subsection (2): “(2) The sole object of an ICAV shall be the collective investment of its funds in property and giving members the benefit of the results of the management of its funds, but this is subject to subsection (2A). (2A) Where an ICAV is authorised under the UCITS Regulations, the sole object of the ICAV shall be as set out in Regulation 4(3)(a) of those Regulations. (2B) Section 6(6) makes provision, consequent on the enactment of subsection (2A), in relation to an ICAV formed before the commencement of section 44 of the Investment Limited Partnerships (Amendment) Act 2020 and which is authorised under the UCITS Regulations.”.
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(2)Section 6 of the Act of 2015 is amended— (a) in subsection (3), by the substitution of the following paragraph for paragraph (a): “(a) the sole object of the ICAV— (i) shall, subject to subparagraph (ii), be the collective investment of its funds in property and giving members the benefit of the results of the management of its funds, or (ii) shall, in the case of an ICAV authorised under the UCITS Regulations, be as set out in Regulation 4(3)(a) of those Regulations,”, and (b) by the insertion of the following subsection after subsection (5): “(6) As respects an ICAV formed before the commencement of section 44 of the Investment Limited Partnerships (Amendment) Act 2020 and authorised under the UCITS Regulations— (a) for a period of 12 months following the commencement of section 44 of the Investment Limited Partnerships (Amendment) Act 2020, the provisions of section 5 and this section, as they stood enacted before the commencement of that section, shall apply to the ICAV, and (b) only on and from the expiry of that period of 12 months shall the provisions of section 5 and this section, as they stand amended by that section 44 of the Investment Limited Partnerships (Amendment) Act 2020, apply to the ICAV.”.
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Amendment of Act of 2015 - new section 8A relating to capacity of ICAVs 45. The Act of 2015 is amended by the insertion of the following section after section 8: “Capacity not limited by an ICAV’s instrument of incorporation 8A. (1) The validity of an act done by an ICAV shall not be called into question on the ground of lack of capacity by reason of anything contained in the ICAV’s instrument of incorporation.
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(2)Nothing in subsection (1) affects the duty of the directors of an ICAV to observe any limitation on their powers.”.
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Amendment of Act of 2015 - new section 8B relating to effect of instrument of incorporation 46. The Act of 2015 is amended by the insertion of the following section after section 8A (inserted by section 45): “Effect of instrument of incorporation 8B. (1) Subject to the provisions of this Act, the instrument of incorporation shall, when registered, bind the ICAV and the members of it to the same extent as if it had been signed and sealed by each member, and contained covenants by the ICAV and each member to observe all the provisions of the instrument of incorporation and each provision of this Act, relating to Irish collective asset-management vehicles, that is applicable to the ICAV.
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(2)All money payable by any member to the ICAV under the instrument of incorporation shall be a debt due from him or her to the ICAV.
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(3)An action to recover a debt created by this section shall not be brought after the expiration of 12 years after the date on which the cause of action accrued.”.
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Amendment of section 14(2) of Act of 2015 47. Section 14(2) of the Act of 2015 is amended by the insertion, after “instrument of incorporation”, of “change in the name of an ICAV,”.
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Amendment of section 30 of Act of 2015 48. Section 30 of the Act of 2015 is amended by the insertion of the following subsection after subsection (2): “(3) If an ICAV changes its name in accordance with this section, then, in addition to fulfilling the requirement under section 14(2) to update the register of ICAVs so as to reflect that change, the Bank shall— (a) alter the copy of the registration order, relating to the ICAV, entered in that register so that it contains the new name, and (b) give written notice of that alteration to the ICAV.”.
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Amendment of section 32 of Act of 2015 49. Section 32 of the Act of 2015 is amended— (a) in subsection (5), by the insertion, after “common seal of the ICAV”, of “(that is to say, executed under the ICAV’s common seal in compliance with section 33(4))”, and (b) by the deletion of subsection (7).
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Amendment of section 33 of Act of 2015 50. Section 33 of the Act of 2015 is amended by the insertion of the following subsection after subsection (3): “(4) Save as otherwise provided by this Act or by the instrument of incorporation of the ICAV— (a) an ICAV’s common seal shall be used only by the authority of its directors, or of a committee of its directors authorised by its directors in that behalf, and (b) any instrument to which an ICAV’s common seal shall be affixed shall be— (i) signed by a director of it or by some other person appointed for the purpose by its directors or by a foregoing committee of them, and (ii) be countersigned by the secretary or by a second director of it or by some other person appointed for the purpose by its directors or by a foregoing committee of them.”.
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Amendment of Act of 2015 - new section 34A relating to powers of attorney 51. The Act of 2015 is amended by the insertion of the following section after section 34: “Powers of attorney 34A. (1) Notwithstanding anything in its instrument of incorporation, an ICAV may empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds or do any other matter on its behalf in any place whether inside or outside the State.
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(2)A deed signed by such attorney on behalf of the ICAV shall bind the ICAV and have the same effect as if it were under its common seal.”.
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Amendment of Act of 2015 - new section 77A relating to intra-group transactions 52. The Act of 2015 is amended by the insertion of the following section after section 77: “Intra-group transactions 77A. (1) Section 77 does not prohibit an ICAV from— (a) making a loan or quasi-loan to any body corporate which is its holding company, subsidiary or a subsidiary of its holding company, or (b) entering into a guarantee or providing any security in connection with a loan or quasi-loan made by any person to any body corporate which is its holding company, subsidiary or a subsidiary of its holding company.
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(2)Section 77 does not prohibit an ICAV from— (a) entering into a credit transaction as creditor for any body corporate which is its holding company, subsidiary or a subsidiary of its holding company, or (b) entering into a guarantee or providing any security in connection with any credit transaction made by any other person for any body corporate which is its holding company, subsidiary or a subsidiary of its holding company.”.
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Amendment of Act of 2015 - new section 85A enabling application to be made in anticipation of apprehended proceedings 53. The Act of 2015 is amended by the insertion of the following section after section 85: “Anticipated claim: similar power of relief as under section 85 85A. (1) If an officer of an ICAV has reason to apprehend that any claim will or might be made against him or her in respect of any negligence, default, breach of duty or breach of trust (the ‘wrong concerned’) he or she may make the following application to the court.
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(2)That application is an application to be relieved of liability in respect of the wrong concerned; on the making of such an application the court shall have the same power to relieve the applicant as it would have had (by virtue of section 85) if it had been a court before which proceedings against that person for the wrong concerned had been brought.”.
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Amendment of Act of 2015 - new Part 5A relating to written resolutions 54. The Act of 2015 is amended by the insertion of the following Part after Part 5: “PART 5A Written Resolutions Unanimous written resolutions 91A. (1) Notwithstanding any provision to the contrary in this Act, a resolution in writing— (a) signed by all the members of an ICAV for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by their duly appointed representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the ICAV duly convened and held, and (b) if described as a special resolution shall be deemed to be a special resolution within the meaning of this Act.
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(2)For the avoidance of doubt, the reference in subsection (1) to a provision to the contrary includes a reference to a provision that stipulates that the ICAV in general meeting, or the members of the ICAV in general meeting, must have passed the resolution concerned.
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(3)A resolution passed in accordance with subsection (1) may consist of several documents in like form each signed by one or more members.
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(4)A resolution passed in accordance with subsection (1) shall be deemed to have been passed at a meeting held on the date on which it was signed by the last member to sign, and, where the resolution states a date as being the date of his or her signature thereof by any member, the statement shall be prima facie evidence that it was signed by him or her on that date.
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(5)If a resolution passed in accordance with subsection (1) is not contemporaneously signed, the ICAV shall notify the members, within 21 days after the date of delivery to it of the documents referred to in subsection (6), of the fact that the resolution has been passed.
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(6)The signatories of a resolution passed in accordance with subsection (1) shall, within 14 days after the date of its passing, procure delivery to the ICAV of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by this Act, such delivery may be effected by electronic mail or the use of a facsimile machine.
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(7)The ICAV shall retain those documents as if they constituted the minutes of the proceedings of a general meeting of the ICAV; without prejudice to the requirement (by virtue of section 88(1)) that the terms of the resolution concerned be entered in books kept for the purpose, the requirement under this subsection that the foregoing documents be retained shall be read as requiring those documents to be kept with the foregoing books.
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(8)It is immaterial, as regards the resolution’s validity, whether subsection (5), (6) or (7) is complied with.
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(9)If an ICAV fails to comply with subsection (5), the ICAV and any officer of it who is in default commits a category 4 offence.
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(10)If a signatory fails to take all reasonable steps to procure the delivery to the ICAV, in accordance with subsection (6), of the documents referred to in that subsection, the signatory commits a category 4 offence.
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(11)This section does not apply to— (a) a resolution to remove a director, or (b) a resolution to effect the removal of an auditor from office, or so as not to continue him or her in office, as mentioned in section 132(1) or 133(1)(b).
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(12)Nothing in this section affects any rule of law as to— (a) things done otherwise than by passing a resolution, (b) circumstances in which a resolution is or is not treated as having been passed, or (c) cases in which a person is precluded from alleging that a resolution has not been duly passed.
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Majority written resolutions 91B. (1) Notwithstanding any provision to the contrary in this Act, a resolution in writing— (a) that is— (i) described as being an ordinary resolution, and (ii) signed by the requisite majority of members of the ICAV concerned, and (b) in respect of which the condition specified in subsection (7) is satisfied, shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the ICAV duly convened and held.
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(2)For the avoidance of doubt, the reference in subsection (1) to a provision to the contrary includes a reference to a provision that stipulates that the ICAV in general meeting, or the members of the ICAV in general meeting, must have passed the resolution concerned.
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(3)In subsection (1) ‘requisite majority of members’ means a member or members who alone or together, at the time of the signing of the resolution concerned, represent more than 50 per cent of the total voting rights of all the members who, at that time, would have the right to attend and vote at a general meeting of the ICAV (or being bodies corporate by their duly appointed representatives).
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(4)Notwithstanding any provision to the contrary in this Act, a resolution in writing— (a) that is— (i) described as being a special resolution, and (ii) signed by the requisite majority of members, and (b) in respect of which the condition specified in subsection (7) is satisfied, shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the ICAV duly convened and held.
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(5)For the avoidance of doubt, the reference in subsection (4) to a provision to the contrary includes a reference to a provision that stipulates that the ICAV in general meeting, or the members of the ICAV in general meeting, must have passed the resolution concerned.
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(6)In subsection (4) ‘requisite majority of members’ means a member or members who alone or together, at the time of the signing of the resolution concerned, represent at least 75 per cent of the total voting rights of all the members who, at that time, would have the right to attend and vote at a general meeting of the ICAV (or being bodies corporate by their duly appointed representatives).
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(7)The condition referred to in subsections (1)(b) and (4)(b) is that all members of the ICAV concerned entitled to attend and vote on the resolution referred to in subsection (1) or (4), as the case may be, have been circulated, by the directors or the other person proposing it, with the proposed text of the resolution and an explanation of its main purpose.
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(8)A resolution passed in accordance with subsection (1) or (4) may consist of several documents in like form each signed by one or more members.
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(9)Without prejudice to section 91C(5), a resolution passed— (a) in accordance with subsection (1), shall be deemed to have been passed, subject to subsection (10), at a meeting held 7 days after the date on which it was signed by the last member to sign, or (b) in accordance with subsection (4), shall be deemed to have been passed, subject to subsection (10), at a meeting held 21 days after the date on which it was signed by the last member to sign, and where the resolution states a date as being the date of his or her signature thereof by any member the statement shall be prima facie evidence that it was signed by him or her on that date.
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(10)Without prejudice to section 91C(5), if— (a) a date earlier than that referred to in subsection (9)(a) or (b) (not being earlier than the date on which the resolution was signed by the last member to sign) is specified in the resolution referred to in subsection (1) or (4) as the date on which it shall have been deemed to have been passed, (b) all members of the ICAV concerned entitled to attend and vote on that resolution state, in a written waiver signed by each of them, that the application of subsection (9) is waived, and (c) there accompanies the delivery to the ICAV under subsection (3) of section 91C of the documents referred to in that subsection that written waiver (which may be so delivered to the ICAV by any of the means referred to in that subsection), then the resolution shall be deemed to have been passed on the date specified in it.
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(11)A written waiver under subsection (10) may consist of several documents in like form each signed by one or more members.
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Supplemental provisions in relation to section 91B 91C. (1) Section 91B does not apply to— (a) a resolution to remove a director, or (b) a resolution to effect the removal of an auditor from office, or so as not to continue him or her in office, as mentioned in section 132(1) or 133(1)(b).
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(2)Within 3 days after the date of the delivery to it of the documents referred to in subsection (3), the ICAV shall notify every member of— (a) the fact of the resolution concerned having been signed by the requisite majority of members (within the meaning of section 91B (3) or (6), as the case may be), and (b) the date that the resolution will, by virtue of section 91B, be deemed to have been passed.
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(3)The signatories of a resolution passed in accordance with section 91B(1) or (4) shall procure delivery to the ICAV of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by this Act, such delivery may be effected by electronic mail or the use of a facsimile machine.
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(4)The ICAV shall retain those documents as if they constituted the minutes of the proceedings of a general meeting of the ICAV; without prejudice to the requirement (by virtue of section 88(1)) that the terms of the resolution concerned be entered in books kept for the purpose, the requirement under this subsection that the foregoing documents be retained shall be read as requiring those documents to be kept with the foregoing books.
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(5)Unless and until subsection (3) is complied with, a resolution passed in accordance with section 91B(1) or (4) shall not have effect; however it is immaterial, as regards the resolution’s validity, whether subsection (2) or (4) is complied with.
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(6)Where subsection (10) of section 91B applies, the reference in subsection (5) to subsection (3) shall be read as including a reference to paragraph (c) of that subsection (10).
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(7)If an ICAV fails to comply with subsection (2), the ICAV and any officer of it who is in default commits a category 4 offence.”.
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Amendment of section 96 of Act of 2015 55. Section 96 of the Act of 2015 is amended by the substitution of the following subsection for subsection (8): “(8) The registration of an investment company or an UCITS as an ICAV by continuation under Part 8 does not affect the priority of charges created by the investment company or the UCITS, as the case may be.”.
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Amendment of section 140(3) of Act of 2015 56. Section 140(3) of the Act of 2015 is amended by the substitution of the following subparagraph for subparagraph (v) of paragraph (d): “(v) any consent or approval to the proposed conversion required by any contract entered into or undertaking given by the company has been obtained or waived,”.
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Amendment of section 141(1) of Act of 2015 57. Section 141(1) of the Act of 2015 is amended by the insertion, after “debts”, of “(being the debts identified for the purposes of subsection (2)(b))”.
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Amendment of section 152(1) of Act of 2015 58. Section 152(1) of the Act of 2015 is amended by the insertion, after “debts”, of “(being the debts identified for the purposes of subsection (2)(b))”.
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Amendment of section 154(2) of Act of 2015 59. Section 154(2) of the Act of 2015 is amended by the substitution, in paragraph (h), of “sections 599 and 609” for “sections 600 and 609”.
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Amendment of section 186 of Act of 2015 60. Section 186 of the Act of 2015 is amended by the insertion of the following subsection after subsection (3): “(4) A person guilty of an offence under this Act that is stated to be a category 4 offence is liable, on summary conviction, to a class A fine.”.
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PART 4
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Amendment of Act of 2005 Amendment of section 5 of Act of 2005 61. Section 5 of the Act of 2005 is amended by the renumbering of the existing section as subsection (1) thereof and the insertion of the following subsections: “(2) The Bank shall not provide any funds from its own resources, other than from those resources provided to it under subsection (3), to defray expenses of the Bank incurred by it in the performance of the functions under sections 18O to 18T (in subsections (3) and (4) referred to as ‘expenses of the Bank associated with its functions under sections 18O to 18T’).
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(3)The Central Bank Commission shall make regulations under section 32D of the Central Bank Act 1942 prescribing levies (in subsection (4) referred to as the ‘dedicated levies’) to be paid by common contractual funds, and the moneys received by the Bank by way of such levies shall be used by it to defray expenses of the Bank associated with its functions under sections 18O to 18T.
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(4)Where— (a) in any year, the Bank reasonably apprehends that it will be unable to defray all of the expenses of the Bank, arising in that year, associated with its functions under sections 18O to 18T from moneys received by it by way of the dedicated levies, or (b) notwithstanding the existence of the dedicated levies and, apart from the circumstance referred to in paragraph (a), for any reason there is an insufficiency in any year of moneys available to the Bank to defray all of its expenses, arising in that year, associated with the foregoing functions, the Minister shall, on the written request of the Bank, advance to the Bank such sums as he or she thinks proper to enable the Bank to defray all of its expenses, arising in that year, associated with the foregoing functions.
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(5)The payments of sums referred to in subsection (4) shall be made on such terms as to repayment, interest and other matters as may be determined by the Minister after consulting the Bank.
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(6)All moneys from time to time required by the Minister to meet sums which may become payable by him or her under subsection (4) shall be advanced out of the Central Fund or the growing produce thereof.”.
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Amendment of section 6 of Act of 2005 62. Section 6(1) of the Act of 2005 is amended— (a) by the insertion of the following definition before the definition of “Bank”: “ ‘Act of 2010’ means the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 ;”, (b) by the insertion of the following definitions after the definition of “Bank”: “ ‘beneficial owner’, in relation to a common contractual fund, means any individual who— (a) ultimately is entitled to or controls, whether the entitlement or control is direct or indirect, more than a 25 per cent share of the capital or profits of the common contractual fund or more than 25 per cent of the voting rights in the common contractual fund, or (b) otherwise controls the common contractual fund; ‘beneficial ownership register’ shall be construed in accordance with section 21B;”, (c) by the insertion of the following definition after the definition of “common contractual fund”: “ ‘competent authority’ means a competent authority as that expression, by virtue of sections 60 and 61 of the Act of 2010, is to be construed for the purposes of Part 4 of that Act;”, (d) by the insertion of the following definitions after the definition of “deed of constitution” or “deed”: “ ‘designated person’ has the meaning assigned to it by section 25 of the Act of 2010; ‘Higher Executive Officer’ means the position of Higher Executive Officer, or a position equivalent to it, in the public body concerned;”, and (e) by the insertion of the following definitions after the definition of “holding company”: “ ‘Member State’, in addition to the meaning assigned to it by section 3(1), includes, where relevant, a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 (as adjusted by the Protocol signed at Brussels on 17 March 1993); ‘PPS number’, in relation to an individual, means the person’s Personal Public Service Number within the meaning of section 262 of the Social Welfare Consolidation Act 2005 ; ‘presenter’ shall be construed in accordance with section 18O(1); ‘Principal Officer’ means the position of Principal Officer, or a position equivalent to it, in the public body concerned; ‘senior managing official’ includes a director and a chief executive officer;”.
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Amendment of Act of 2005 - new sections 18A to 18U relating to beneficial ownership disclosure 63. The Act of 2005 is amended by the insertion of the following sections after section 18: “Requirement to hold information on beneficial ownership of common contractual fund 18A. (1) A management company of a common contractual fund shall take all reasonable steps to obtain and hold adequate, accurate and current information in respect of the common contractual fund’s beneficial owners, that is to say— (a) the name, date of birth, nationality, and residential address of each beneficial owner of it, (b) a statement of the nature and extent of the interest held, or the nature and extent of control exercised, by each such beneficial owner, and (c) the PPS number of each such beneficial owner to whom such a number has been issued, and any PPS number so obtained shall not be disclosed by the management company for any purpose of this section or of any of sections 18B to 18H.
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(2)The management company shall enter the information referred to in subsection (1)(a) and (b) in the common contractual fund’s beneficial ownership register, and the following information shall also be entered by it in that register: (a) the date on which the name of each individual was entered into the register as a beneficial owner of the common contractual fund; (b) the date on which each individual who has ceased to be a beneficial owner of the common contractual fund ceased to be such an owner.
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(3)If, either— (a) after exhausting all possible means, and provided there are no grounds for suspicion by the management company, no individual is identified as a beneficial owner of the common contractual fund, or (b) there is any doubt that individual so identified is a beneficial owner of the common contractual fund, there shall be entered, in the common contractual fund’s beneficial ownership register as its beneficial owners (stating the nature and extent of the control exercised by them), the names of the one or more individuals who are the senior managing officials of the management company of the common contractual fund (including their date of birth, nationality and residential addresses) and— (i) the requirement of subsection (1) with regard to not disclosing a PPS number shall apply in the case of this subsection as that requirement applies in the case of that subsection, (ii) subsection (2) shall apply in the case of this subsection as it applies in the case of subsection (1), and (iii) references in any subsequent section of this Part to the particulars referred to in subsection (1)(a) and (b) of this section shall be deemed to include, where the context admits, references to the particulars referred to in this subsection.
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(4)In a case falling within subsection (3)(a) or (b), the management company of the common contractual fund shall keep records of the actions taken in order to identify the beneficial ownership of the common contractual fund.
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(5)A management company of a common contractual fund shall provide any member of the Garda Síochána, the Revenue Commissioners, a competent authority or the Criminal Assets Bureau with timely access, on request, to the common contractual fund’s beneficial ownership register.
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(6)Each of the following: (a) the Garda Síochána; (b) the Revenue Commissioners; (c) a competent authority; (d) the Criminal Assets Bureau, may disclose the information in a beneficial ownership register to any corresponding competent authority of another Member State (a ‘corresponding authority’); in the event of there being a request made of a body or other person referred to in any of paragraphs (a) to (d) by a corresponding authority for disclosure of such information, the request shall be complied with in a timely manner.
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(7)Where a management company of a common contractual fund, acting as a management company, enters into an occasional transaction with a designated person within the meaning of section 25 of the Act of 2010, or forms a business relationship with such a designated person, the management company shall— (a) inform the designated person in writing that it is acting as a management company of a common contractual fund; (b) provide information on the common contractual fund’s beneficial ownership to the designated person when the designated person is taking customer due diligence measures in accordance with Part 4 of the Act of 2010; (c) on request from the designated person, provide the designated person without delay with information identifying all the beneficial owners of the common contractual fund; (d) notify the designated person of any change to the common contractual fund’s beneficial ownership register that occurs which is relevant to the occasional transaction or that occurs during the course of the business relationship formed, and the date on which it occurred within 14 days from the date on which the management company became aware of the change.
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(8)For the purposes of subsection (7), ‘occasional transaction’ means a transaction in relation to which the designated person is required to apply customer due diligence measures under Part 4 of the Act of 2010.
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(9)A management company that fails to comply with subsection (1), (2), (3), (4), (5) or (7) shall be guilty of an offence.
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Duty to give particular notice to individuals believed to be beneficial owners of common contractual fund 18B. (1) Without prejudice to the generality of section 18A(1), a management company of a common contractual fund shall give to any individual whom it has reasonable cause to believe to be a beneficial owner of the common contractual fund the notice referred to in subsection (2), but this is subject to subsection (5).
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(2)The notice referred to in subsection (1) is a notice, addressed to the individual concerned, that requires the addressee— (a) to state whether or not he or she is a beneficial owner of the common contractual fund, and (b) if so, to confirm or correct any particulars of his or hers that are included in the notice, and supply any that are missing, and such a notice is referred to subsequently in this section as a notice under this section.
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(3)A notice under this section shall— (a) state that it is given under ‘section 18B of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 ’, and (b) as respects each of the particulars referred to in section 18A (1)(a), (b) and (c) — (i) set out that which— (I) to the knowledge of the management company is, or (II) with reasonable cause is believed by it to be, the relevant particular, or (ii) in the absence of such knowledge or belief (on its part as respects a relevant particular) indicate, by leaving a space in the appropriate place, that that particular is not given in the notice.
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(4)A notice under this section shall also state that the addressee is to comply with the notice by no later than the end of the period of one month beginning with the date of the notice.
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(5)A management company is not required to give a notice under this section if— (a) the management company has already been informed of the status of the individual referred to in subsection (1) as a beneficial owner of the common contractual fund, and been supplied with all the particulars referred to in section 18A(1)(a), (b) and (c), and (b) the information and particulars were provided either by that individual or with his or her knowledge.
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(6)A management company that fails to comply with subsection (1) or any other provision of this section shall be guilty of an offence.
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Other particular steps that may be taken to establish identity of beneficial owners 18C. (1) This section— (a) is without prejudice to the generality of section 18A(1), and (b) does not derogate from the duty, where it arises, under section 18B.
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(2)A management company of a common contractual fund may give to any person (whether an individual or not) the notice referred to in subsection (3) if it has reasonable cause to believe that the person has the knowledge referred to in paragraph (a) or (b) of that subsection.
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(3)The notice referred to in subsection (2) is a notice, addressed to the person referred to in that subsection, that requires the addressee— (a) to state whether or not the addressee knows the identity of— (i) any individual who is a beneficial owner of the common contractual fund, or (ii) any person (whether an individual or not) likely to have that knowledge, and (b) if so, to supply any particulars of any such person that are within the addressee’s knowledge, and state whether or not the particulars are being supplied with the knowledge of each of the persons concerned, and such a notice is referred to subsequently in this section as a notice under this section.
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(4)For the purposes of subsection (3) — (a) a reference to knowing the identity of a person includes a reference to knowing information from which that person can be identified, and (b) a reference in paragraph (b) of it to particulars is a reference— (i) in the case of the individual referred to in paragraph (a)(i) of it - to the particulars referred to in section 18A(1)(a) and (b), and (ii) in the case of the person referred to in paragraph (a)(ii) of it - to any particulars that will allow the person to be contacted by the management company.
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(5)A notice under this section shall state— (a) that it is given under ‘section 18C of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 ’, and (b) that the addressee is to comply with the notice by no later than the end of the period of one month beginning with the date of the notice.
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(6)Nothing in this section shall be construed as requiring a person to whom a notice under it is given to disclose any information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.
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Duty to keep information in register up-to-date 18D. (1) This section applies where particulars of an individual, as being a beneficial owner of a common contractual fund, are entered in the common contractual fund’s beneficial ownership register.
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(2)For the purposes of this section, a relevant change occurs if— (a) the individual referred to in subsection (1) ceases to be a beneficial owner of the common contractual fund, or (b) any other change occurs as a result of which the particulars (stated in the foregoing register) in relation to the natural person are incorrect or incomplete.
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(3)Where this section applies, the management company shall, in accordance with subsection (4), give the notice referred to in subsection (5) to the individual if it knows or has reasonable cause to believe that a relevant change has occurred, but this is subject to subsection (8).
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(4)The foregoing notice shall be given by the management company as soon as reasonably practicable after it learns of the change concerned or first has reasonable cause to believe that the change concerned has occurred.
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(5)The notice referred to in subsection (3) is a notice, addressed to the individual concerned, that requires the addressee— (a) to confirm whether or not the change concerned has occurred, and (b) if so— (i) to state the date of the change, and (ii) to confirm or correct the particulars included in the notice, and supply any that are missing from the notice, and such a notice is referred to subsequently in this section as a notice under this section.
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(6)A notice under this section shall— (a) state that it is given under ‘section 18D of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 ’, and (b) as respects such of the particulars referred to in section 18A(1)(a) and (b) as are known by the management company (or with reasonable cause believed by it) to have been the subject of the change concerned— (i) set out that which— (I) to the knowledge of the management company are, or (II) with reasonable cause are believed by it to be, the relevant particulars as they now stand in consequence of that change, or (ii) in the absence of such knowledge or belief (on its part as respects a relevant particular) indicate, by leaving a space in the appropriate place, that that particular is not given in the notice.
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(7)A notice under this section shall also state that the addressee is to comply with the notice by no later than the end of the period of one month beginning with the date of the notice.
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(8)A management company is not required to give a notice under this section if— (a) the management company has already been informed of the change concerned, and (b) that information (including, as the case may be, the relevant particulars referred to in subsection (2)(b)) were provided either by the individual concerned or with his or her knowledge.
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(9)A management company that fails to comply with subsection (3) or any other provision of this section shall be guilty of an offence.
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Duty of beneficial owner (in certain circumstances) to notify his or her status as such 18E. (1) This section applies to an individual if— (a) the individual is a beneficial owner of a common contractual fund, (b) the individual knows that to be the case or ought reasonably to do so, (c) in relation to the individual, the particulars referred to in section 18A(1)(a) and (b) are not stated in the common contractual fund’s beneficial ownership register, (d) the individual has not been given a notice by the management company under section 18B, and (e) the circumstances specified in paragraphs (a) to (d) have continued for a period of at least one month.
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(2)An individual to whom this section applies shall notify, in writing, the management company of the common contractual fund referred to in subsection (1) of the individual’s status (as a beneficial owner) of the common contractual fund, and that notification shall state— (a) the date, to the best of the person’s knowledge, on which the person acquired that status, and (b) the particulars referred to in section 18A(1)(a), (b) and (c).
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(3)Subsection (2) shall be complied with by the individual not later than the end of the period of one month beginning with the day on which all the conditions specified in subsection (1)(a) to (e) were first met with respect to the person.
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(4)An individual who— (a) fails to comply with this section, or (b) in purported compliance with this section, makes a statement that is false in a material particular, knowing it to be so false or being reckless as to whether it is so false, shall be guilty of an offence.
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Duty of individual (in certain circumstances) to notify relevant change 18F. (1) This section applies to an individual if— (a) in relation to the individual (as a beneficial owner of the common contractual fund), the particulars referred to in section 18A(1)(a) and (b) are stated in a common contractual fund’s beneficial ownership register, (b) a relevant change occurs, (c) the individual knows of the change or ought reasonably to do so, (d) the common contractual fund’s beneficial ownership register has not been altered to reflect the change, and (e) the individual has not been given a notice by the management company under section 18D by the end of the period of one month beginning with the day on which the change occurred.
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(2)For the purposes of this section, a relevant change occurs if— (a) the individual referred to in subsection (1) ceases to be a beneficial owner of the common contractual fund referred to in that subsection, or (b) any other change occurs as a result of which the particulars (stated in the common contractual fund’s beneficial ownership register) in relation to the individual are incorrect or incomplete.
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(3)An individual to whom this section applies shall notify, in writing, the management company referred to in subsection (1)(a) of the relevant change, and that notification shall— (a) state the date on which the change occurred, and (b) give to the management company any necessary information so that it can alter the common contractual fund’s beneficial ownership register to reflect that change.
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(4)Subsection (3) shall be complied with by the individual not later than whichever of the following periods is the last to expire— (a) the period of 2 months beginning with the day on which the relevant change occurred, (b) the period of one month beginning with the day on which facts have come to the notice of the individual from which he or she could reasonably conclude that the relevant change has occurred.
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(5)An individual who— (a) fails to comply with this section, or (b) in purported compliance with this section, makes a statement that is false in a material particular, knowing it to be so false or being reckless as to whether it is so false, shall be guilty of an offence.
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Offence for failure to comply with notice under section 18B, 18C or 18D 18G. (1) A person to whom a notice under section 18B, 18C or 18D is given shall be guilty of an offence if the person— (a) fails to comply with the notice, or (b) in purported compliance with the notice, makes a statement that is false in a material particular, knowing it to be so false or being reckless as to whether it is so false.
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(2)In proceedings for an offence under this section it shall be a defence to prove that the requirement (in the notice concerned) to give information was frivolous or vexatious.
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Duty to keep and maintain a beneficial ownership register 18H. (1) The management company of a common contractual fund shall keep and maintain a register (which shall be known, and is in this Part referred to, as a ‘beneficial ownership register’) in which there shall be entered by it the information referred to in section 18A(1)(a) and (b) and (2).
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(2)A management company that fails to comply with subsection (1) shall be guilty of an offence.
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(3)If— (a) the name of any individual is, without sufficient cause, entered in or omitted from a common contractual fund’s beneficial ownership register, or (b) default is made or unnecessary delay takes place in entering in a common contractual fund’s beneficial ownership register the fact that an individual has ceased to be a beneficial owner of it, the individual aggrieved or any other interested party may apply to the High Court for rectification of the register.
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(4)Where an application is made under subsection (3), the High Court may either refuse the application or may order rectification of the beneficial ownership register and payment by the common contractual fund of compensation for any loss sustained by any party aggrieved.
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(5)On such an application, the High Court may— (a) decide any question as to whether the name of any person who is a party to the application should or should not be entered in or omitted from the beneficial ownership register, and (b) more generally, decide any question necessary or expedient to be decided for rectification of the beneficial ownership register.
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(6)The reference in this section to ‘any other interested party’ is a reference to any other person who is a beneficial owner of the common contractual fund.
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Discharge of initial central filing obligation - construction of references to that expression in sections 18J to 18P 18I. A reference in sections 18J to 18P to the discharge by a management company of its initial central filing obligation is a reference to the delivery by the management company of information to the Registrar in compliance with section 18M(1) or (2).
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Delivery of information under sections 18M to 18P: delivery may be effected by persons external to management company (as well as by officers or employees of it) 18J. (1) The provision made by subsection (2) is in addition to the general law whereby a management company acting through an officer or employee of the management company may discharge an obligation referred to in this section.
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(2)An obligation imposed on a management company of a common contractual fund by any of sections 18M to 18P to deliver information to the Registrar may be discharged by a person, who is not an officer or employee of the management company, acting on the management company’s behalf.
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(3)Section 18O makes provision as respects certain information to be delivered to the Registrar where the obligation concerned is discharged on behalf of the management company by a person acting as mentioned in subsection (2).
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(4)Section 18M(6) applies to the delivery by a management company of a common contractual fund of information irrespective of whether the person who delivers the information is an officer or employee of the management company or a person acting as mentioned in subsection (2).
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Registrar of Beneficial Ownership of Common Contractual Funds 18K. (1) There shall, for the purposes of this Part, be a registrar to be known as the ‘Registrar of Beneficial Ownership of Common Contractual Funds’, and in this Part referred to as the ‘Registrar’.
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(2)The Bank shall be the Registrar.
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Establishment and maintenance of central register 18L. (1) There is, by virtue of this section, established a register which shall be known as the ‘Central Register of Beneficial Ownership of Common Contractual Funds’ and is in this Part referred to as the ‘central register’.
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(2)The central register shall be maintained by the Registrar; the information required by sections 18M to 18P to be delivered or submitted to the Registrar shall be entered in that register by the Registrar and that register shall be kept in such form as the Registrar considers appropriate.
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(3)The provision made by subsection (2) as respects entry of information in the central register is subject to subsection (5) of section 18N (which prohibits disclosure of a PPS number).
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Obligation of management company to deliver beneficial ownership information to Registrar and related obligations of designated person where certain discrepancies discovered 18M. (1) A management company of a common contractual fund, being a fund that is in existence before the commencement of section 63 of the Investment Limited Partnerships (Amendment) Act 2020, shall deliver the information specified in section 18N to the Registrar within 6 months from such commencement.
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(2)A management company of a common contractual fund, being a fund that comes into existence on or after the commencement of section 63 of the Investment Limited Partnerships (Amendment) Act 2020, shall, within 6 months from the date of its coming into existence, deliver the information specified in section 18N to the Registrar in such manner as the Registrar determines.
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(3)Where the following conditions are satisfied (and whether in the circumstances of the designated person taking the measures referred to in section 18A(7) or otherwise)— (a) any of the particulars, as referred to in section 18A(1)(a) and (b), contained in the beneficial ownership register of a common contractual fund come to the knowledge of a designated person, and (b) the designated person forms the opinion that there is a discrepancy between the particulars referred to in paragraph (a) and the information in the central register (on referring himself or herself to the information in the central register as it relates to that common contractual fund), then the designated person shall deliver, in a timely manner, to the Registrar, in such manner as the Registrar determines, notice of that opinion, specifying the particulars as respects which the foregoing discrepancy exists.
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(4)On receipt of a foregoing notice, the Registrar shall— (a) if the Registrar considers it appropriate to do so, make an entry in the relevant place in the central register which states that the notice has been received and specifies the particulars as respects which the foregoing discrepancy exists, and (b) serve a notice on the management company of the common contractual fund concerned which— (i) states that the foregoing notice has been received, and (ii) specifies the particulars as respects which the foregoing discrepancy exists, and requests the management company of the common contractual fund to deliver to the Registrar, within a period specified in the notice and in such manner as the Registrar determines— (I) a submission as to why the management company of the common contractual fund considers the opinion of the designated person concerned not to be well founded, or (II) if the management company of the common contractual fund considers the opinion of the designated person concerned to be well founded, such amended particulars (for entry in the central register) as are required where the management company is satisfied that the delivery of such is the appropriate means by which the discrepancy can be resolved, and such a request shall be complied with by the management company of the common contractual fund accordingly.
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(5)None of the following— (a) an opinion stated in a notice delivered under subsection (3) by a designated person to the Registrar (nor the specification in such a notice of the particulars as respects which the discrepancy concerned exists), (b) any act done by the Registrar, as mentioned in subsection (4), on foot of the receipt by the Registrar of a notice delivered under subsection (3) and, in particular, any entry made in the central register by the Registrar on foot of such receipt, (c) a submission delivered under subsection (4)(b)(ii)(I) to the Registrar by a management company, shall, of itself, be regarded as constituting defamatory matter.
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(6)The means specified in subsection (7), and no other means, shall be used by a management company of a common contractual fund to deliver, under this section or any of sections 18N to 18P, information to the Registrar. If such means are not used to deliver the information concerned, the fact of the receipt by the Registrar of the particular information shall not constitute compliance with the requirement concerned of the section in question.
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(7)The means referred to in subsection (6) are those that are provided for under the Electronic Commerce Act 2000 .
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(8)The reference in this section to the use of the means provided for under the Electronic Commerce Act 2000 is a reference to their use in a manner that complies with any requirements of the Registrar of the kind referred to in sections 12(2)(b) and 13(2)(a) of that Act.
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Information which shall be delivered to Registrar 18N. (1) The following is the information referred to in section 18M(1) or (2) that shall be delivered by a management company of a common contractual fund to the Registrar: (a) the name, date of birth, nationality and residential address of each beneficial owner of the common contractual fund; (b) a statement of the nature and extent of the interest held, or the nature and extent of control exercised by, each such beneficial owner, and section 18P makes provision for occasions, subsequent to the discharge by the management company of its initial central filing obligation, on which information shall be delivered by it to the Registrar.
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(2)In addition to what is provided in subsection (1), there shall be delivered to the Registrar by the management company of the common contractual fund— (a) for the purpose of verification of the information delivered under section 18M(1) or (2) and without prejudice to paragraph (b), the PPS number of each beneficial owner to whom such a number has been assigned, or (b) such information as stands determined by the Registrar for the purposes of this section.
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(3)In addition to what is provided in subsections (1) and (2), where the obligation imposed on a management company of a common contractual fund by section 18M(1) or (2) is discharged by its acting through an officer or employee of the management company, there shall be delivered to the Registrar— (a) the name, address, phone number and e-mail address of the officer or employee for correspondence purposes, and (b) particulars as to the capacity in which the officer or employee is acting.
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(4)The Registrar shall delete from the central register information entered in it in relation to a common contractual fund if 10 years have elapsed from the date on which the final distribution is made under the common contractual fund (should such occur) and, as soon as may be after that deletion, the Registrar shall destroy that information.
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(5)As respects a PPS number of a beneficial owner that has been delivered under subsection (2) to the Registrar— (a) the Registrar shall not disclose that number, and (b) that number shall be stored securely by the Registrar.
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(6)The Registrar shall, as respects any information that has been received under subsection (3) and recorded by the Registrar, destroy the information as soon as may be after 10 years have elapsed from the date on which the final distribution is made (should such occur) under the common contractual fund to which it relates.
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(7)Subsections (2) to (6) shall, with any necessary modifications, apply to amended particulars that are to be, or have been delivered, under section 18M(4)(b)(ii)(II) as they apply to information that is to be, or has been, delivered under section 18M(1) or (2).
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Information to be provided by presenter 18O. (1) This section applies where the information specified in section 18M(1) or (2) is delivered to the Registrar by a person (in this section referred to as the ‘presenter’) acting on behalf of the management company concerned as mentioned in section 18J(2).
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(2)Where this section applies, the following information shall also be delivered by the presenter to the Registrar: (a) the presenter’s name, address, phone number and e-mail address; (b) particulars as to the capacity in which the presenter is acting; (c) if the presenter is not an individual, the name, address, phone number and e-mail address of an individual for correspondence purposes.
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(3)The Registrar shall, as respects any information that has been received under subsection (2) and recorded by the Registrar, destroy the information as soon as may be after 10 years have elapsed from the date on which the final distribution is made (should such occur) under the common contractual fund to which it relates.
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Duty to keep information in beneficial ownership register and central register aligned and up-to-date 18P. (1) The purpose of this section is to require that any changes that occur in the information contained in a common contractual fund’s beneficial ownership register be reflected by a corresponding change being made in the central register; accordingly there is imposed on the management company of a common contractual fund by this section an obligation, referred to in this section as the ‘follow up obligation’, to deliver information to the Registrar so as to allow any such change to be reflected in the central register.
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(2)The provisions of this section shall have effect in relation to a common contractual fund following the discharge by the management company of the common contractual fund of its initial central filing obligation (and in subsection (3) the time on which that obligation is so discharged is referred to as the ‘relevant time’).
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(3)Where at any time, subsequent to the relevant time, the obligation referred to in subsection (4) falls to be discharged by a management company of the common contractual fund, then there is also imposed on the management company, by this section, the follow up obligation specified in subsection (5).
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(4)The first-mentioned obligation in subsection (3) of the management company is the obligation to— (a) enter any information in the common contractual fund’s beneficial ownership register, or (b) amend or delete any information in that register, whether by virtue of its duty under section 18A(1) to hold accurate and current information regarding the common contractual fund’s beneficial ownership or any provision of section 18B, 18C, 18D, 18E or 18F.
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(5)The management company’s follow up obligation is to deliver to the Registrar, as appropriate— (a) the same information as that which (as mentioned in subsection (4)(a)) the management company is required to enter in the common contractual fund’s beneficial ownership register, or (b) the appropriate information that will enable the Registrar to make the same amendment or deletion of information in the central register as that which (as mentioned in subsection (4)(b)) the management company is required to make in the common contractual fund’s beneficial ownership register, and the follow-up obligation shall be discharged within 14 days from the date on which the first-mentioned obligation in subsection (3) falls to be discharged by the management company.
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(6)Section 18N(2) to (7) and, as the case may be, section 18O shall apply in a case where information is delivered to the Registrar under subsection (5) as they apply in a case where information is delivered to the Registrar under section 18M(1), (2) or (3).
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Unrestricted access to beneficial ownership information in central register 18Q. (1) Subject to subsection (2), the following shall have the right to inspect the central register— (a) a member of the Garda Síochána, not below the rank of inspector, who is engaged in the prevention, detection, investigation or analysis of possible money laundering or terrorist financing, (b) a member of FIU Ireland within the meaning of Part 4 of the Act of 2010, (c) an officer of the Revenue Commissioners, holding a position not below that of Higher Executive Officer, (d) an officer of the Criminal Assets Bureau, holding a rank not below the rank of inspector in the Garda Síochána, or holding a position not below that of Higher Executive Officer.
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(2)The right referred to in subsection (1) shall not be exercised— (a) by a member of the Garda Síochána referred to in paragraph (a) of that subsection, unless he or she has been authorised to exercise the right by a member of the Garda Síochána, not below the rank of superintendent, (b) by a member of FIU Ireland, unless he or she has been authorised to exercise the right by a member of the Garda Síochána, not below the rank of superintendent, (c) by an officer of the Revenue Commissioners referred to in paragraph (c) of that subsection, unless he or she has been authorised to exercise the right by an officer of the Revenue Commissioners, holding a position not below that of Principal Officer, or (d) by an officer of the Criminal Assets Bureau referred to in paragraph (d) of that subsection, unless he or she has been authorised to exercise the right by a member of the Garda Síochána, not below the rank of superintendent.
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(3)Subject to subsection (4), a member, a member of staff or an officer of a competent authority who is engaged in the prevention, detection or investigation of possible money laundering or terrorist financing shall have the right to inspect the central register.
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(4)The right referred to in subsection (3) shall not be exercised— (a) by— (i) a member of staff of the Bank, (ii) an officer of the Minister for Justice and Equality, (iii) a member or member of staff of the Property Services Regulatory Authority, or (iv) a member or member of staff of the Legal Services Regulatory Authority, (each of which or whom is referred to in this subparagraph as a ‘relevant competent authority’) unless he or she holds a position not below that of Higher Executive Officer and has been authorised to exercise the right by a member or member of staff or, as the case may be, an officer of the relevant competent authority concerned, holding a position not below that of Principal Officer, or (b) by a member or member of staff of— (i) the Law Society of Ireland, (ii) the General Council of the Bar of Ireland, or (iii) a designated accountancy body (within the meaning of Part 4 of the Act of 2010), unless he or she is a person designated by the President of the Law Society of Ireland, the chairperson of the General Council of the Bar of Ireland or the chief executive of (or a person holding an equivalent position in) the designated accountancy body, as the case may be, to be a person authorised for the purposes of subparagraph (i), (ii) or (iii), as appropriate, to exercise the right.
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(5)On there being made of the Registrar a request for inspection, under any of subsections (1) to (4), of the central register, the Registrar shall afford the maker of the request access, in a timely manner, to the register.
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(6)The Registrar shall, neither during the taking of the steps to afford the maker the access referred to in subsection (5), nor afterwards, alert the beneficial owners of any common contractual fund concerned to the fact of such access having been afforded.
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(7)In subsection (6), ‘any common contractual fund concerned’ means any common contractual fund to which the information in the central register, the subject of the inspection concerned, relates.
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(8)Each of the following: (a) the Garda Síochána; (b) the Revenue Commissioners; (c) a competent authority; (d) the Criminal Assets Bureau, may disclose the information in the central register to any corresponding competent authority of another Member State (a ‘corresponding authority’); in the event of there being a request made of a body or other person referred to in any of paragraphs (a) to (d) by a corresponding authority for disclosure of such information, the request shall be complied with in a timely manner.
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(9)No fee shall be charged to a corresponding authority for the disclosure of the information in the central register.
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Restricted access to beneficial ownership information in central register 18R. (1) When— (a) a management company of a common contractual fund enters into an occasional transaction with a designated person, or forms a business relationship with a designated person, or (b) a designated person is taking customer due diligence measures in accordance with Part 4 of the Act of 2010 in relation to a common contractual fund, the designated person shall, subject to subsection (6), have a right of access to the following information in the central register that relates to the common contractual fund: (i) the name, the month and year of birth and the country of residence and nationality of each beneficial owner of it; (ii) a statement of the nature and extent of the interest held, or the nature and extent of control exercised, by each such beneficial owner, and that access shall be afforded in a timely manner.
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(2)The information obtained by a designated person by means of the access to the central register afforded under subsection (1) shall not be relied upon exclusively by the designated person to fulfil the designated person’s duty to apply customer due diligence measures under Part 4 of the Act of 2010 (which duty shall be fulfilled by using a risk-based approach).
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(3)Any person may, subject to subsection (6), request in writing access to the following information in the central register that relates to any common contractual fund: (a) the name, the month and year of birth and the country of residence and nationality of each beneficial owner of it; and (b) a statement of the nature and extent of the interest held, or the nature and extent of control exercised, by each such beneficial owner.
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(4)Any person may, subject to subsection (6), request in writing access to the following information in the central register that relates to any common contractual fund which holds or owns a controlling interest in any corporate or other legal entity incorporated outside the European Union, through direct or indirect ownership, including through bearer shareholdings, or through control via other means: (a) the name, the month and year of birth and the country of residence and nationality of each beneficial owner of the common contractual fund; (b) a statement of the nature and extent of the interest held, or the nature and extent of control exercised, by each such beneficial owner of the common contractual fund, and that access shall be afforded in a timely manner.
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(5)The Data Protection Act 2018 shall apply to the access that the Registrar affords to a designated person and any member of the public in respect of the information in the central register that relates to a common contractual fund.
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(6)Where a designated person or a member of the public seeks to have access to, or to inspect, any information in the central register so far as such information relates to a minor who is a beneficial owner of a common contractual fund, the Registrar shall request the designated person or member of the public to provide, in writing, to the Registrar a summary of the grounds on which he or she considers it is in the public interest that that information be disclosed to him or her and— (a) if the designated person or the member of the public refuses or fails to comply with that request, or (b) unless the Registrar, having considered such a written summary provided to the Registrar, is of the opinion that there are substantial grounds for the contention of the foregoing person that it is in the public interest that the information be disclosed to him or her, the designated person or member of the public shall not be permitted by the Registrar to have access to, or to inspect, any information in the central register so far as such information relates to the minor concerned.
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(7)In subsection (1), ‘occasional transaction’ has the same meaning as it has in section 18A(7).
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Obligations of competent authorities to report certain discrepancies to Registrar 18S. (1) If— (a) any of the following: (i) the Garda Síochána; (ii) the Revenue Commissioners; (iii) a competent authority; (iv) the Criminal Assets Bureau, forms the opinion that there is a discrepancy between the information in the central register and the beneficial ownership information, as it relates to any common contractual fund, available to, as the case may be, the Garda Síochána, the Revenue Commissioners or other foregoing authority or bureau (each of which is referred to in this section as a ‘relevant person’), and (b) to the extent that the doing of the following does not interfere unnecessarily with the performance of the relevant person’s functions, then the relevant person shall deliver, in a timely manner, to the Registrar, in such manner as the Registrar determines, notice of that opinion, specifying the particulars as respects which the foregoing discrepancy exists.
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(2)On receipt of a foregoing notice, the Registrar shall— (a) if the Registrar considers it appropriate to do so, make an entry in the relevant place in the central register which states that the notice has been received and specifies the particulars as respects which the foregoing discrepancy exists, and (b) serve a notice on the management company of the common contractual fund concerned which— (i) states that the foregoing notice has been received, and (ii) specifies the particulars as respects which the foregoing discrepancy exists, and requests the management company to deliver to the Registrar, within a period specified in the notice and in such manner as the Registrar determines— (I) a submission as to why the management company considers the opinion of the relevant person concerned not to be well founded, or (II) if the management company considers the opinion of the relevant person concerned to be well founded, such amended particulars (for entry in the central register) as are required where the management company is satisfied that the delivery of such is the appropriate means by which the discrepancy can be resolved, and such a request shall be complied with by the management company accordingly.
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(3)None of the following— (a) an opinion stated in a notice delivered under subsection (1) by a relevant person to the Registrar (nor the specification in such a notice of the particulars as respects which the discrepancy concerned exists), (b) any act done by the Registrar, as mentioned in subsection (2), on foot of the receipt by the Registrar of a notice delivered under subsection (1) and, in particular, any entry made in the central register by the Registrar on foot of such receipt, (c) a submission delivered under subsection (2)(b)(ii)(I) to the Registrar by a management company, shall, of itself, be regarded as constituting defamatory matter.
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(4)Subsections (2) to (7) of section 18N shall, with any necessary modifications, apply to amended particulars that are to be, or have been delivered, under subsection (2)(b)(ii)(II) as they apply to information that is to be, or has been, delivered under section 18M(1) or (2).
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Fees may be charged for access to central register 18T. (1) The Registrar may require any of the persons referred to in section 18R(1), (3) or (4) to pay to the Registrar a fee of such an amount as the Registrar may determine in respect of the access afforded to the central register under section 18R(1), (3) or (4).
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(2)The amount of a fee required to be paid under subsection (1) shall not exceed the administrative cost incurred in affording access to the information concerned.
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Offence for failure to comply with section 18M, 18N, 18O or 18P and supplemental provisions 18U. (1) A management company that fails to comply with section 18M, 18N or 18O shall be guilty of an offence.
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(2)A management company that fails, without reasonable excuse, to comply with a request, as referred to in subparagraph (ii) of subsection (4)(b) of section 18M, or subparagraph (ii) of subsection (2)(b) of section 18S, contained in a notice served on it under that subsection (4)(b) or (2)(b), as the case may be, shall be guilty of an offence.
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(3)A presenter that fails to comply with section 18O shall be guilty of an offence.
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(4)A person who, in purported compliance with section 18M, 18N, 18O or 18P, makes a statement that is false in a material particular, knowing it to be so false or being reckless as to whether it is so false, shall be guilty of an offence.
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(5)A designated person who fails to comply with section 18M(3) shall be guilty of an offence.”.
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PART 5
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Amendment of Social Welfare Consolidation Act 2005 Amendment of Schedule 5 to Social Welfare Consolidation Act 2005 64. Schedule 5 to the Social Welfare Consolidation Act 2005 is amended, in paragraph 1(4), by the insertion, after “Quality and Qualifications Ireland,” (inserted by section 18 of the Social Welfare and Pensions (Miscellaneous Provisions) Act 2013 ), of the following: “Registrar of Beneficial Ownership of Investment Limited Partnerships, Registrar of Beneficial Ownership of Irish Collective Asset-management Vehicles, Credit Unions and Unit Trusts, Registrar of Beneficial Ownership of Common Contractual Funds,”.
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