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Investor Compensation Act, 1998

Go hachomair

Is éard atá i gceist leis an dlí seo ná cúiteamh a sholáthar d'infheisteoirí i gcás nach féidir le gnólacht infheistíochta a chuid oibleagáidí a chomhlíonadh, agus déanann sé foráil maidir le scéimeanna cúitimh d'infheisteoirí.

Cad a rialaíonn sé

  • Bunú agus riaradh cuideachta cúitimh d'infheisteoirí.
  • Ranníocaíochtaí ó ghnólachtaí infheistíochta chun ciste cúitimh a chothabháil.
  • Nósanna imeachta chun gearáin a fhiosrú agus chun cúiteamh a íoc le hinfheisteoirí.
  • Ceanglais maidir le gnólachtaí infheistíochta a bheith páirteach i scéimeanna cúitimh.

Cé lena mbaineann sé

  • Infheisteoirí a d'fhéadfadh caillteanais a fhulaingt mar gheall ar ghnólacht infheistíochta nach féidir leis a chuid oibleagáidí a chomhlíonadh.
  • Gnólachtaí infheistíochta údaraithe, lena n-áirítear gnólachtaí gnó infheistíochta, gnólachtaí comhaltaí, institiúidí creidmheasa, agus idirghabhálaithe árachais.

Príomhphointí

  • Cruthaítear cuideachta chun cúiteamh d'infheisteoirí a riaradh.
  • Ní mór do ghnólachtaí infheistíochta ranníocaíochtaí a dhéanamh le ciste cúitimh.
  • Tá nósanna imeachta ann chun a chinneadh cathain nach féidir le gnólacht infheistíochta a chuid oibleagáidí a chomhlíonadh.
  • Déantar foráil maidir le hiarratais ar chúiteamh agus íocaíocht cúitimh le hinfheisteoirí.
Legal text
Legal text

Act, 1998 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe a

subsection

(2).
(4)Nothing in this section shall prohibit an individual from applying for payment under section 34 . Appointment of an administrator. 33.—
(1)The supervisory authority may appoint an administrator to an investment firm in respect of which a determination has been made in accordance with section 31
(3)or in respect of which a court has made a ruling.
(2)An administrator appointed by the supervisory authority to an investment firm under subsection
(1)shall have the powers of an authorised officer under the Act of 1995 in relation to the investment firm and the powers available to an authorised officer under that Act shall apply in relation to investment firms accordingly.
(3)The administrator shall deliver to the Company or to the compensation scheme approved of under section 25 , of which the investment firm is or was a member, as appropriate, and to the supervisory authority, as soon as practicable, the names of eligible investors and a statement of the net loss of each such investor and a statement of the compensatable loss of each such investor.
(4)An administrator may apply to the Court to determine any question arising in relation to his or her functions under this Act. Payment of compensation. 34.—
(1)In the case of an investment firm in respect of which the supervisory authority has made a determination under section 31 or a court has made a ruling, where the investment firm was not a member of a compensation scheme approved of under section 25 at the time of the determination or ruling, the Company shall pay to each eligible investor an amount equal to the compensatable loss of that eligible investor.
(2)In the case of an investment firm in respect of which the supervisory authority has made a determination under section 31 or a court has made a ruling, where the investment firm was a member of a compensation scheme approved of under section 25 at the time of the determination or ruling, that compensation scheme shall pay to each eligible investor an amount equal to the compensatable loss of that eligible investor.
(3)Until the 31st day of December, 1999, where— (
  1. a)compensatable loss arises from the provision of investment business services by an authorised investment firm in another Member State, and (
  2. b)the investment business services provided are investment business for the purposes of the Investor Compensation Directive, the Company shall pay to the eligible investor an amount which is equal to the lesser of— (
  3. i)that compensatable loss, or (
  4. ii)the amount to which the eligible investor would be entitled in accordance with Article 7 of the Investor Compensation Directive if the investment firm was an investment firm authorised in accordance with the Investment Services Directive in that other Member State or a credit institution authorised in accordance with Council Directive 77/780/EEC as amended by Council Directive 89/646/EEC in that other Member State.
(4)Where the Company has made a payment under subsection
(1)and all or part of such payment relates to net losses of a client arising from investment business services provided by the investment firm while it was a member of a compensation scheme approved of under section 25 , the relevant compensation scheme shall pay to the Company an amount which bears to the compensatable loss of the client the same proportion as the client's net loss arising while the investment firm was a member of the compensation scheme bears to the client's net loss.
(5)Where a compensation scheme approved of under section 25 has made a payment under subsection
(2)and all or part of such payment relates to net losses of a client arising from investment business services provided by the investment firm while it was not a member of a compensation scheme approved of under section 25 , the Company shall pay to the relevant compensation scheme an amount which bears to the compensatable loss of the client the same proportion as the client's net loss arising while the investment firm was not a member of the compensation scheme approved of under section 25 bears to the client's net loss.
(6)Where an investment firm has paid contributions to different funds maintained by the Company by virtue of a change in the class or category of investment firm to which the investment firm belonged, and net losses of clients of the investment firm arose while the investment firm belonged to such different classes or categories, the Company shall endeavour to ensure that payments made under this section shall be made from the fund maintained in respect of the appropriate class or category of investment firm.
(7)Where a dispute or difference arises in respect of payments under subsection
(4),
(5)or
(6), that dispute or difference shall be resolved under regulations made by the Minister on the advice of the supervisory authority. Further provisions relating to payment of compensation. 35.—
(1)Subject to subsections
(2)and
(3), the Company or a compensation scheme approved of under section 25 shall make payments under section 34 in respect of compensatable losses of which it has been informed by the administrator under section 33
(3)as soon as practicable and at the latest within three months of the date on which the administrator advises the Company or compensation scheme of the amount of an eligible investor's compensatable loss.
(2)(
  1. a)Subject to the approval of the supervisory authority and to such conditions or requirements as may be specified by the supervisory authority, the Company or a compensation scheme approved of under section 25 may, in exceptional circumstances, postpone the making of a payment under section 34 . (
  2. b)The supervisory authority, when giving approval or prescribing conditions or requirements for the purposes of paragraph (a), shall have regard to the requirements of Article 9 of the Investor Compensation Directive.
(3)Notwithstanding the time limits provided for in subsections
(1)and
(2), where an eligible investor has been charged with an offence under Part IV or section 57 or 58 of the Criminal Justice Act, 1994 , or otherwise arising out of or in relation to money laundering as defined in Article 1 of Council Directive No. 91/308/EEC of 10 June 1991, the supervisory authority may direct the Company or a compensation scheme approved under section 25 , as appropriate, to suspend any payment to the eligible investor pending the judgment of the court concerned in respect of the charge or charges.
(4)Where the Company or a compensation scheme approved of under section 25 has made a payment under section 34 to an eligible investor, proof of those payments shall be given to the Company or the investor compensation scheme by the person to whom the monies were so paid.
(5)Where the Company or an investor compensation scheme approved of under section 25 has made a payment under section 34 to an eligible investor, the Company or compensation scheme shall be subrogated to the rights of that eligible investor in liquidation proceedings against the investment firm for an amount equal to the amount paid by the Company or the compensation scheme under section 34 to that eligible investor.
(6)Where the Company or an investor compensation scheme approved of under section 25 has made a payment under section 34 to an eligible investor, the Company or compensation scheme shall be subrogated to the rights of that eligible investor in respect of any payments made under a bond held by the investment firm in accordance with section 51 of the Act of 1995 or section 47 of the Act of 1989 and in respect of any payments made under a policy of professional indemnity insurance held by the investment firm in respect of the eligible investor's net loss.
(7)A client of an investment firm may appeal to the Court against any refusal to make a payment under section 34 or against the amount of any payment made under that section.
(8)Where a claim for payment under section 34 arises in respect of monies belonging to an investor and held by an investment firm which is a credit institution in connection with investment business such that a claim for payment could also be made under the European Communities (Deposit Guarantee Schemes) Regulations, 1995 ( S.I. No. 168 of 1995 ), in respect of those monies, the supervisory authority shall specify that the client is either— (a) an excluded depositor for the purposes of the European Communities (Deposit Guarantee Schemes) Regulations, 1995, or (b) an excluded investor for the purposes of this Act. Provisions relating to restricted intermediaries. 36.—
(1)In this section— “receipted monies” means the value of client money or investment instruments forming part of the net loss of an eligible investor which were entrusted by the eligible investor to a restricted intermediary for transmission to an identifiable product producer from which the restricted intermediary held a valid written appointment at the time the money or investment instruments were so entrusted; “restricted intermediary” means an investment firm which is or was— (a) a restricted activity investment product intermediary, or (b) an insurance intermediary which is not an authorised investment business firm (unless the investment firm is a restricted activity investment product intermediary), or both and is not a member of a compensation scheme approved of under section 25 .
(2)A product producer from which a restricted intermediary held a valid written appointment shall pay to the Company, in respect of each eligible investor to whom the Company is liable to make a payment under section 34 in respect of that restricted intermediary, an amount which bears to the compensatable loss of each such eligible investor the same proportion as the receipted monies of the eligible investor intended for transmission to that product producer bear to the net loss of the eligible investor.
(3)Product producers shall be subrogated to the Company in respect of any claim of the Company against an investment firm in respect of monies paid to the Company by product producers under this section.
(4)Nothing in any contract shall limit or vary the liability of a product producer under this section. PART IV Miscellaneous Joint accounts and trustees. 37.—
(1)Where— (
  1. a)an eligible investor is a trustee making an application for payment under section 34 on behalf of a trust, and (
  2. b)any beneficiary of the trust concerned is beneficially entitled against the trustees to any identifiable part of the amount so claimed, either absolutely or jointly with a fixed number of other beneficiaries, then, the net loss in respect of which the trustee makes an application for payment under section 34 shall be treated, but only for the purpose of ascertaining a compensatable loss— (
  3. i)where the beneficiary is entitled absolutely, as if legal ownership of the money and investment instruments which comprise the net loss had passed to the beneficiary, (
  4. ii)where the beneficiary is entitled jointly with a number of other beneficiaries, as if the money and investment instruments which comprise the net loss were joint investment business maintained by the beneficiaries and legal and joint ownership had passed to the beneficiaries concerned.
(2)Where persons (being persons other than trustees or persons to whom subsection
(1)applies) having, or treated by virtue of subsection
(1)as having, joint ownership of money or investment instruments comprising a net loss are entitled to the money or investment instruments by virtue of their joint ownership of the monies or investment instruments, then, they shall, in the absence of special terms and conditions, each be treated, but only for the purpose of ascertaining a compensatable loss, as having a separate investment equal to the amount that would be produced by dividing equally the money and the value of the investment instruments concerned among the number of persons having joint ownership.
(3)Where two or more persons are entitled to money or investment instruments received, held, controlled or paid by an investment firm as members of a partnership, association or grouping of a similar nature, without legal personality (whether or not in equal shares), such money or investment instruments shall be treated as a single investment.
(4)The supervisory authority and, where necessary for the purposes of ascertaining a net loss, the administrator concerned may require any person claiming payment under section 34 to supply sufficient information to enable a decision to be made as to whether this section applies to such money or investment instruments.
(5)Where, in a case to which subsection
(1)or
(2)applies, a client's claim for payment under section 34 also relates to other money or investment instruments, that other money or investment instruments shall, for the purpose of ascertaining a net loss, be aggregated with any amount of money or investment instruments maintained by that person for the purpose of either or both subsections
(1)and
(2)and the compensatable loss so ascertained shall be divided and duly paid to the person concerned and either or both (as the circumstances may require) the trustees concerned and the said person jointly with others, in the same proportion or proportions as the amounts so aggregated bear to each other. Information to investors and advertising. 38.—
(1)Except where subsection
(2)applies, investment firms shall make available to actual and intending investors such information concerning investor compensation as may be specified by the supervisory authority in a manner and form specified by the supervisory authority.
(2)Where a branch of an investment firm authorised or formerly authorised by the supervisory authority is established in another Member State in

the Investment Services Directive, the information provided for in subsection

(1)shall be made available in the prescribed manner in the official language or languages of the Member State in which the branch is established.
(3)Except with the prior written consent of the supervisory authority, an investment firm shall not advertise or cause to be advertised the fact (however expressed) that monies or investment instruments placed with the investment firm are protected by or through an investor compensation fund. Investment firms joining compensation schemes in other Member States. 39.—
(1)This section applies where an investment firm has established a branch in another Member State in

Article 17

of the Investment Services Directive or in

Article 18of Council Directive No.

89/646/EEC of 15 December, 1989 and has under the provisions of Article 7 of the Investor Compensation Directive joined an investor compensation scheme within the territory of that Member State.

(2)Where the supervisory authority has been notified that a branch established in another Member State which has joined an investor compensation scheme for the purposes of subsection
(1)has not complied with the obligations imposed on it as a consequence of its membership of that investor compensation scheme, the supervisory authority shall, in collaboration with that investor compensation scheme, take all appropriate measures to ensure that those obligations are complied with.
(3)Sections 27 and 28 shall apply to an investment firm to which subsection
(2)applies as if the obligations to which the investment firm is subject as a consequence of its membership of a compensation scheme in another Member State in accordance with Article 7 of the Investor Compensation Directive were obligations imposed on the investment firm by or under this Act. Membership of compensation scheme by investment firm authorised in another Member State. 40.—
(1)In this section— “client” means an investor who has, in connection with investment business, entrusted money or investment instruments to a branch established in the State by an investment firm in

Article 17

of the Investment Services Directive or in

Article 18of Council Directive No.

89/646/EEC; “competent authority”, in relation to an investment firm, means a competent authority for the purposes of the Investor Compensation Directive in another Member State; “eligible investor” means a client of an investment firm who is entitled to compensation in accordance with Article 2 and the first paragraph of Article 7.1 of the Investor Compensation Directive and who has made an application for compensation within the meaning of Article 2 of that Directive; “investment business” has the same meaning as it has in the Investor Compensation Directive; “investment firm” means an investment firm within the meaning of subsection

(2); “investor” has the same meaning as it has in the Investor Compensation Directive.
(2)An investment firm (within the meaning of the Investment Services Directive) which is authorised in another Member State for the purposes of that Directive or of Council Directive No. 89/646/EEC of 15 December 1989 which has established a branch in the State in

Article 17

of the Investment Services Directive and which wishes to exercise the option of participating in investor compensation arrangements in the State in accordance with Article 7.1 of the Investor Compensation Directive, shall notify the Company accordingly and shall then be and become an investment firm for the purposes of this Act.

(3)An investment firm shall supply all relevant information which the Company may request and shall pay a contribution to a fund maintained by the Company in accordance with subsection
(4).
(4)The contribution to be paid by an investment firm to the Company in accordance with section 21 shall be determined by the Company, with the agreement of the supervisory authority, on an annual basis, having regard to Article 7 and the guiding principles set out in Annex II of the Investor Compensation Directive.
(5)The contribution to be paid by an investment firm to the Company in accordance with section 21 shall stand to the credit of the fund maintained by the Company which, in the view of the supervisory authority, most closely meets the requirements of the fourth paragraph of Article 7.1 of the Investor Compensation Directive.
(6)Sections 27 , 28 , 31 , 32 and 33 shall not apply to an investment firm within the meaning of this section.
(7)The amount payable under section 34 to an eligible investor in the case of an investment firm shall be an amount equal to the amount by which the eligible investor's compensatable loss relating to money or investment instruments entrusted by the eligible investor to a branch of the investment firm in connection with investment business exceeds the amount of compensation payable to the eligible Investor in accordance with Article 2 and the first paragraph of Article 7.1 of the investor Compensation Directive.
(8)The Company shall make payment under subsection
(8)as soon as practicable and at the latest within three months of the date on which the Company is informed by the competent authority of the amount of compensation payable to the eligible investor in accordance with Articles 2 and 7.1, first paragraph, of the Investor Compensation Directive, unless the competent authority agrees that payment may be made later than three months after that date.
(9)Where an investment firm has not complied with its obligations under this Act, the Company shall inform the competent authority and the supervisory authority and may, with the consent of the competent authority, notify the investment firm that, with effect from a specified date, being a date not less than 12 months after the date of the notification, the Company shall not be liable to make payments under section 34 to clients of the investment firm in respect of money or investment instruments entrusted by clients to the investment firm after the date specified by the Company unless the investment firm has complied in full with its obligations under this Act within 12 months of the date of the notification.
(10)If an investment firm does not comply fully with its obligations under this Act following a notification by the Company under subsection
(9), the Company shall not, with effect from the date specified by the Company in accordance with subsection
(9), be liable to make payments in accordance with section 34 to clients of the investment firm in respect of money or investment instruments entrusted by clients to the investment firm in connection with investment business after the date specified by the company.
(11)Where an investment firm has not complied in full with its obligations under this Act within 12 months of the date of the notification referred to in subsection
(9), the Company shall, on the expiry of that period of 12 months, inform the investment firm and clients of the investment firm that the Company shall not be liable to make payments under section 34 to clients of the investment firm in respect of money or investment instruments entrusted by clients to the investment firm in connection with investment business after the date specified by the Company in accordance with subsection
(9).
(12)Where an investment firm notifies the Company that it no longer wishes to exercise the option of participating in investor compensation arrangements in the State in accordance with Article 7.1 of the Investor Compensation Directive, the Company shall not, with effect from the date of such notification, be liable to make payments under section 34 to clients of the investment firm in respect of money or investment instruments entrusted by clients to the investment firm in connection with investment business after the date of such notification. Compulsory insurance of authorised investment firms. 41.—
(1)The supervisory authority may require authorised investment firms to effect a policy of professional indemnity insurance in a form specified by the supervisory authority (and different forms may be specified for different classes of authorised investment firm), indemnifying the authorised investment firm up to such sum, in such manner, in respect of such matters and valid for such minimum period as the supervisory authority may specify from time to time.
(2)When the supervisory authority requires an authorised investment firm to effect a policy of professional indemnity insurance it shall have regard to any existing statutory requirements for a particular category or categories of investment firm to hold professional indemnity insurance. Exemption from liability for damages. 42.—
(1)The supervisory authority or any employee or officer of the supervisory authority or a subsidiary established by the Bank for the purposes of section 20 or any employee or officer of the subsidiary or an authorised officer for the purposes of section 9 or any member of the Board of the supervisory authority or any member of the Board of the subsidiary shall not be liable in damages for anything done or omitted in the discharge or purported discharge of any of its functions under this Act unless it is shown that the act or omission was in bad faith.
(2)The Board of the Company or any employee or officer of the Company shall not be liable in damages for anything done or omitted in the discharge or purported discharge of any of its functions under this Act unless it is shown that the act or omission was in bad faith.
(3)Without prejudice to the generality of subsections
(1)and
(2), the approval, supervision, regulation or revocation of approval of a fund for the purposes of section 19 or an investor compensation scheme under this Act shall not constitute a warranty or other claim as to the solvency or performance of the fund or any investment firm which has contributed to the fund or investor compensation scheme or any of its members and the State and the supervisory authority and the Company shall not be liable in respect of any loss or losses incurred through the insolvency, default or performance of the fund or investment firm or investor compensation scheme or any of its members. Offences and penalties. 43.—
(1)A person who is guilty of an offence under section 29
(3)or subsection
(4),
(7)or
(8)of this section shall be liable— (
  1. a)on summary conviction to a fine not exceeding £1,500 or, at the discretion of the court in the case of an individual, to imprisonment for a term not exceeding 12 months, or both, or (
  2. b)on conviction on indictment, to a fine not exceeding £1,000,000 or, at the discretion of the court in the case of an individual, to imprisonment for a term not exceeding 10 years, or both.
(2)Summary proceedings in relation to an offence under this Act may be brought and prosecuted by the Director of Public Prosecutions or by the supervisory authority.
(3)Notwithstanding section 10
(4)of the Petty Sessions (Ireland) Act, 1851 , summary proceedings for any offence under this Act may be instituted within two years from the date of the discovery of the offence.
(4)Where an offence under this Act is committed by a body corporate or by an unincorporated body or person or by a sole trader and is proved to have been committed with the consent, connivance or approval of, or to be attributable to, or to have been facilitated by any neglect on the part of, any officer or employee of that entity or person purporting to act on behalf of that entity, that officer or employee shall be guilty of an offence and shall be liable to be proceeded against and punished as if that officer or employee were guilty of the first-mentioned offence, provided, however, that an officer or employee shall not be sentenced to imprisonment for such an offence unless in the opinion of the court the offence was committed wilfully.
(5)(
  1. a)Where, on an application made in a summary manner by a supervisory authority, the Court is of the opinion that there has occurred or is occurring— (
  2. i)a contravention of this Act, or (
  3. ii)a failure to comply with a condition or requirement imposed by the supervisory authority in accordance with this Act or with a direction issued by the supervisory authority under section 27 , the Court may by order prohibit the continuance of the contravention or failure by the person or persons concerned. (
  4. b)The Court when considering the application may make such interim or interlocutory order as it considers appropriate. (
  5. c)This section is without prejudice to the statutory functions of the supervisory authority. (
  6. d)Where the Court is satisfied, because of the nature or circumstances of the case or otherwise in the interests of justice, that it is desirable, the whole or any part of proceedings under this section may be held otherwise than in public.
(6)If the contravention, breach or failure in respect of which a person was convicted under subsection
(1)or
(4)is continued after conviction, the officer or employee shall be guilty of a further offence on every day on which the contravention, breach or failure continues and for each such offence the officer or employee shall be liable on summary conviction to a fine not exceeding £1,500 or on conviction on indictment to a fine not exceeding £5,000.
(7)A person who, in purported compliance with any provision of this Act or any regulation made thereunder— (
  1. a)provides an answer or explanation, makes a statement or produces, lodges or delivers any return, report, certificate, balance sheet or other document false in a material particular, knowing it to be false, or (
  2. b)recklessly provides an answer or explanation, makes a statement or produces, lodges or delivers any return, report, certificate, balance sheet or other document false in a material particular, or (
  3. c)knowingly withholds or omits information, shall be guilty of an offence.
(8)(
  1. a)An officer of a product producer or of an investment firm who destroys, mutilates or falsifies, or is privy to the destruction, mutilation or falsification of any record or document affecting or relating to the property or affairs of the product producer or any investment firm, or makes or is privy to the making of a false entry therein, shall, unless the officer proves that he or she had no intention not to comply with the law, be guilty of an offence. (
  2. b)Any person mentioned in paragraph (
  3. a)who fraudulently disposes of, alters or makes an omission in any such record or document, or who is privy to the disposal of, altering or making of an omission in any such record or document shall be guilty of an offence.
(9)Where there is a contravention of this Act applicable to a partnership each partner may be charged alone or jointly with any one or more of the partners with any offence in respect of such contravention and on conviction shall be liable for the penalty imposed.
(10)In any proceedings for an offence under this Act applicable to partnerships it shall be a defence for a partner charged to prove— (
  1. a)that the commission of the offence was due to a mistake or the reliance on information supplied to the partner or to the act or default of another person, an accident or some other cause beyond his or her control, and (
  2. b)that the partner took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or herself or any other person under his or her control.
(11)Nothing in this Act or any other enactment, and no rule of law, shall preclude the prosecution of a partner for an offence of which another partner or any other person has been previously charged or convicted. Amendment of section 2
(7)of Act of 1995. 44.—Section 2 of the Act of 1995 is hereby amended by the substitution for subsection
(7)of the following: “
(7)Notwithstanding subsection
(1)of this section, or any provision of Part VII of this Act, a solicitor in respect of whom a practising certificate (within the meaning of the Solicitors Acts, 1954 to 1994) is in force shall not be an investment business firm by virtue of the provision in a manner incidental to the provision of legal services of investment business services or investment advice, where— (
  1. a)he does not hold himself out as being an investment business firm, and (
  2. b)when acting as an investment product intermediary he does not hold an appointment in writing other than from— (
  3. i)an investment firm authorised in accordance with Directive 93/22/EEC of 10 May 1993
(1)by a competent authority of another Member State, or an authorised investment business firm (not being a restricted activity investment productintermediary or a certified person), or a member firm within the meaning of the Stock Exchange Act, 1995 , or (ii) a credit institution authorised in accordance with Directives 77/780/EEC of 12 December, 1977
(1)and 89/646/EEC of 15 December, 1989
(2), or (iii) a manager of a collective investment undertaking authorised to market units in collective investments to the public, which is situate in the State or the relevant branch of which is situate in the State.”. Amendment of section 2 of Act of 1994. 45.—Section 2 of the Act of 1994 is hereby amended by— (
  1. a)the insertion of the following definitions: “‘authorised investment business firm’ has the meaning assigned to it in section 2 of the Investor Compensation Act, 1998;”; “‘investment business services’ has the meaning assigned to it in section 2 of the Investor Compensation Act, 1998;”, and (
  2. b)the substitution of the following definition for the definition of legal services: “‘legal services’ means services of a legal or financial nature provided by a solicitor arising from that solicitor's practice as a solicitor, and includes any part of such services; and, for the avoidance of doubt, includes any investment business services provided by a solicitor who is not an authorised investment business firm;”. Insertion of new section in Act of 1994. 46.—The Act of 1994 is hereby amended by the insertion of the following section after section 30: “30A.—
(1)Where it appears to the Society, after consultation with the Minister, that it is necessary to do so for the purpose of ensuring the fair and reasonable implementation in the public interest of the provisions of section 26 of the Act of 1994 and the provisions of sections 21 and 22 (as substituted by the Act of 1994) of the Act of 1960 (or regulations made by the Society relating thereto), the Society may make regulations, with the consent of the Minister, providing that a solicitor who— (
  1. a)is an authorised investment business firm, or (
  2. b)is, or who holds himself out as being, an insurance intermediary, shall, as a condition of being issued with a practising certificate, effect and maintain, in respect of— (
  3. i)the provision of investment business services as an authorised investment business firm, or (
  4. ii)activities as an insurance intermediary, such form or forms of indemnity against losses suffered by a client in consequence of the default, howsoever arising, of the solicitor or any employee, agent or independent contractor of the solicitor as shall be equivalent to the indemnity that would be provided to a client of a solicitor in the provision of legal services by means of the Compensation Fund or by means of the indemnity cover maintained pursuant to section 26 of this Act (or regulations made by the Society relating thereto).
(2)The Society shall not amend regulations made pursuant to subsection
(1)of this section without the consent of the Minister.
(3)The Minister may— (a) direct the Society to make regulations under subsection
(1)of this section or to amend regulations made under subsection
(1)or
(2)of this section; (b) by regulations vary upwards the maximum amount of indemnity against losses specified in regulations made by the Society pursuant to subsection
(1)or
(2)of this section having regard to changes in the value of money generally in the State since the said maximum amount was first specified.
(4)In this section, ‘insurance intermediary’ has the meaning assigned to it in section 2 of the Investor Compensation Act, 1998.”. Provisions relating to solicitors. 47.—
(1)(
  1. a)A solicitor in respect of whom a practising certificate (within the meaning of the Solicitors Acts, 1954 to 1994) is in force shall be an investment business firm— (
  2. i)where the solicitor provides investment business services or investment advice in a manner which is not incidental to the provision of legal services, or (
  3. ii)where the solicitor holds himself or herself out as being an investment business firm, or (iii) where, when acting as an investment product intermediary in a manner incidental to the provision of legal services, the solicitor holds an appointment in writing other than from— (I) an investment firm authorised in accordance with the Investment Services Directive by a competent authority of another Member State, or an authorised investment business firm (not being a restricted activity investment product intermediary or a certified person), or a member firm within the meaning of the Stock Exchange Act, 1995 , or (II) a credit institution authorised in accordance with Directives 77/780/EEC of 12 December, 1977, and 89/646/EEC of 15 December, 1989, or (III) a manager of a collective investment undertaking authorised to market units in collective investments to the public, which is situate in the State or the relevant branch of which is situate in the State, and shall be required to be authorised as an authorised investment business firm pursuant to the provisions of the Act of 1995. (
  4. b)A solicitor, in respect of whom a practising certificate (within the meaning of the Solicitors Acts, 1954 to 1994) is in force, who is an insurance intermediary or who holds himself out to be an insurance intermediary shall be an investment firm for the purposes of this Act and shall inform the supervisory authority and the Company that he or she is an investment firm for the purposes of this Act.
(2)(a) Section 26 of the Act of 1994 and sections 21 and 22 (as substituted by the Act of 1994) of the Act of 1960 (or regulations made by the Society relating thereto) shall not apply to a solicitor in respect of whom a practising certificate (within the meaning of the Solicitors Acts, 1954 to 1994) is in force in relation to the provision by the solicitor of investment business services (whether or not including the activities of an insurance intermediary) as an authorised investment business firm, or in relation to a solicitor who is an insurance intermediary and who has informed the supervisory authority and the Company pursuant to subsection
(1)(
  1. b)that he or she is an investment firm. (
  2. b)No client of a solicitor in respect of whom a practising certificate (within the meaning of the Solicitors Acts, 1954 to 1994) is in force and who is an authorised investment business firm, or who is an insurance intermediary and has informed the supervisory authority and the Company pursuant to subsection
(1)(
  1. b)that he or she is an investment firm, shall, in respect of any loss suffered in consequence of the default, howsoever arising, of the solicitor, or any employee, agent or independent contractor of the solicitor in relation to the provision of investment business services as an authorised investment business firm or in relation to the solicitor acting as an insurance intermediary, be entitled to make a claim against the Compensation Fund (within the meaning of the Act of 1994) or against the indemnity cover maintained pursuant to section 26 of the Act of 1994 and regulations made thereunder. (
  2. c)Nothing in this section shall otherwise affect the obligations of a solicitor in respect of whom a practising certificate (within the meaning of the Solicitors Acts, 1954 to 1994) is in force or the rights of a client, arising under section 26 of the Act of 1994 or sections 21 and 22 (as substituted by the Act of 1994) of the Solicitors (Amendment) Act, 1960 (or regulations made by the Society relating thereto), in respect of the provision by the solicitor of legal services. PART V Miscellaneous Amendments Amendment of section 16 of Central Bank Act, 1989. 48.—The Central Bank Act, 1989 , is hereby amended in section 16
(2)by the insertion of the following paragraph after paragraph (t): “(tt) made to the Investor Compensation Company Limited or to a subsidiary established by the Bank for the purposes of providing administrative services to the Investor Compensation Company Limited,”. Amendment of section 44 of Act of 1989. 49.—Section 44 of the Act of 1989 is hereby amended by the insertion after subsection
(2)of the following subsection: “
(3)A person shall not act as or hold himself out to be an insurance broker unless he complies with the provisions of the Investor Compensation Act, 1998.”. Amendment of section 46 of Act of 1989. 50.—Section 46 of the Act of 1989 is hereby amended in subsection
(1)by the substitution for paragraph (
  1. b)of the following: “(
  2. b)a person who complies with the requirements of this Act but is not a member of a recognised representative body, and the person is in compliance with the Investor Compensation Act, 1998.”. Amendment of section 49 of Act of 1989. 51.—Section 49 of the Act of 1989 is hereby amended in subsection
(1)by the insertion after paragraph (
  1. a)of the following paragraph: “(
  2. aa)he complies with the Investor Compensation Act, 1998,”. Amendment of section 2 of Act of 1995. 52.—Section 2 of the Act of 1995 is hereby amended— (
  3. a)in subsection
(1)— (
  1. i)in the definition of “investment advice” by the insertion in paragraph (
  2. d)after “and the purchase” of “or sale” and the paragraph as so amended is set out in the Table to this paragraph. TABLE (
  3. d)advice to undertakings on capital structure, industrial strategy and related matters and advice relating to mergers and the purchase or sale of undertakings, (
  4. ii)in the definition of “investment advice” in paragraph (
  5. e)by the substitution for “is a necessary part of” of “arises from” and the paragraph as so amended is set out in the Table to this subparagraph. TABLE (
  6. e)advice given by persons in the course of the carrying on of any profession or business not otherwise constituting the business of an investment business firm, where the giving of such advice arises from other advice or services given in the course of carrying on that profession or business, and where the giving of investment advice is not remunerated or rewarded separately from such other advice or services; (iii) in the definition of “investment business firm” by the insertion after “credit institution” of “or member firm (within the meaning of the Stock Exchange Act, 1995 )” in each place it occurs and the definition as so amended is set out in the Table to this subparagraph. TABLE “investment business firm” means any person, other than a member firm within the meaning of the Stock Exchange Act, 1995 , who provides one or more investment business services or investment advice to third parties on a professional basis and for this purpose where an individual provides an investment business service and where that service is carried on solely for the account of and under the full and unconditional responsibility of an investment business firm or an insurance undertaking or a credit institution or member firm (within the meaning of the Stock Exchange Act, 1995 ) that activity shall be regarded as the activity of the investment business firm, insurance undertaking or credit institution or member firm (within the meaning of the Stock Exchange Act, 1995 ) itself; (
  7. iv)in the definition of “investment instruments”— (I) in paragraph (
  8. a)by the insertion after “certificates representing securities,” of “or money market instruments,”, (II) in paragraph (
  9. g)by the substitution for “financial instruments” of “investment instruments”, (III) by the insertion after paragraph (
  10. j)of the following paragraph: “(
  11. jj)a rolling spot foreign exchange contract,”, (IV) by the insertion after paragraph (
  12. k)of the following paragraph: “(
  13. kk)a tracker bond or similar instrument,”, and (V) by the insertion after subparagraph (III) of “and the Minister may, by regulation, having consulted the supervisory authority, amend this definition from time to time by adding to the list of instruments in this definition any other instruments which, in the opinion of the Minister, have characteristics similar to the instruments listed in this definition.”, and the definition as so amended is set out in the Table to this subparagraph. TABLE “investment instruments” includes— (
  14. a)transferable securities including shares, warrants, debentures including debenture stock, loan stock, bonds, certificates of deposits and other instruments creating or acknowledging indebtedness issued by or on behalf of any body corporate or mutual body, government and public securities, including loan stock, bonds and other instruments creating or acknowledging indebtedness issued by or on behalf of a government, local authority or public authority, bonds or other instruments creating or acknowledging indebtedness, certificates representing securities, money market instruments, (
  15. b)non-transferable securities creating or acknowledging indebtedness issued by or on behalf of a government, local authority or public authority, (
  16. c)units or shares in undertakings for collective investments in transferable securities within the meaning of European Communities (Undertakings for Collective Investments in Transferable Securities) Regulations, 1989 ( S.I. No. 78 of 1989 ), and any subsequent amendments thereto, units in a unit trust, shares in an investment company, capital contributions to an investment limited partnership, (
  17. d)financial futures contracts, including currency futures, interest rate futures, bond futures, share index futures and comparable contracts, (
  18. e)commodity futures contracts, (
  19. f)forward interest rate agreements, (
  20. g)agreements to exchange payments based on movements in interest rates, currency exchange rates, commodities, share indices and other investment instruments, (
  21. h)sale and repurchase and reverse repurchase agreements involving transferable securities, (
  22. i)agreements for the borrowing and lending of transferable securities, (
  23. j)certificates or other instruments which confer all or any of the following rights, namely— (
  24. i)property rights in respect of any investment instrument referred to in paragraph (
  25. a)of this definition; or (
  26. ii)any right to acquire, dispose of, underwrite or convert an investment instrument, being a right to which the holder would be entitled if he held any such investment to which the certificate or instrument relates; or (iii) a contractual right (other than an option) to acquire any such investment instrument otherwise than by subscription, (
  27. jj)a rolling spot foreign exchange contract, (
  28. k)options including— (
  29. i)options in any instrument in paragraphs (
  30. a)to (
  31. jj)of this definition, or (
  32. ii)currency, interest rate, commodity and stock options including index option contracts, (
  33. kk)a tracker bond or similar instrument, (
  34. l)hybrid instruments involving two or more investment instruments, and includes any investment instrument in dematerialised form, but this definition shall not be construed as applying to— (I) any instrument acknowledging or creating indebtedness for, or for money borrowed to defray, the consideration payable under a contract for the supply of goods or services; or (II) a cheque or other similar bill of exchange, a banker's draft or a letter of credit; or (III) a banknote, a statement showing a balance in a current, deposit or savings account or (by reason of any financial obligation contained in
  35. it)to a lease or other disposition of property, or an insurance policy; and the Minister, may by regulation, having consulted the supervisory authority, amend this definition from time to time by adding to the list of instruments in this definition any other instruments which, in the opinion of the Minister, have characteristics similar to the instruments listed in this definition; (
  36. b)in subsection
(6)— (
  1. i)in paragraph (
  2. a)by the insertion after “provides investment business services” of “or investment advice”, (
  3. ii)in paragraph (
  4. e)by the substitution for “64/25” of “64/225”, (iii) by the substitution for paragraph (
  5. f)of the following paragraph— “(
  6. f)collective investment undertakings and the depositaries and managers of such undertakings, insofar as the activities of the collective investment undertaking or the depositaries or the managers are subject to regulation by the Bank, or”, and (
  7. iv)by the substitution for paragraph (
  8. h)of the following paragraphs: “(
  9. h)credit institutions which provide investment business services or investment advice and which, in so doing, do not exceed the terms of authorisations under Directive No. 77/780/EEC of 12 December 1977
(1)as amended by Council Directive 89/646/EEC of 15 December 1989
(2)as amended and extended from time to time, or (
  1. i)an investment business firm which the supervisory authority has determined does not require an authorisation because the provision of investment business services is only carried out because it is necessary to the main activities of the investment business firm, and, for these purposes, the determination of the supervisory authority shall be for a fixed period only and shall be subject to whatever reporting requirements the supervisory authority deems appropriate, or (
  2. j)the personal representative of a deceased person in respect of his actions as a personal representative or a trustee in respect of his actions as a trustee of a trust, where ‘personal representative’ has the same meaning as it has in the Succession Act, 1965 , and ‘trustee’ has the same meaning that it has in the Trustee Act, 1893 , provided that this paragraph shall not apply where the principal objective of the trust is to provide investment services to members of the public, or (
  3. k)notwithstanding the obligations imposed on liquidators and receivers under this Act, a person appointed as a liquidator or receiver of a company in respect of any activities relating to the liquidation or receivership, or (
  4. l)any collective investment undertaking including its manager which is not established in the State but which: (
  5. i)has received approval from the Bank, under the powers granted to it under other enactments, to market units of the undertaking in the State; or (
  6. ii)has been authorised by the competent authority of another Member State under Council Directive 85/611/EEC
(1), or (m) a practising member of an approved professional body, not being a certified person, who holds at his principal place of business, on behalf of clients, share certificates in private limited companies owned by those clients where the member holds the share certificates only in order to facilitate the orderly management of the private limited company's statutory records, where the holding of the share certificates arises from the provision of professional services by the member to the client.”. Amendment of section 9 of Act of 1995. 53.—Section 9 of the Act of 1995 is hereby amended by the insertion after subsection
(2)of the following subsection: “
(3)(
  1. a)The supervisory authority may arrange for the publication of notices in any of the newspapers circulating in the State or elsewhere or in the Iris Oifigiúil where the supervisory authority reasonably believes that a company registered in the State or any other person operating in the State is acting as an investment business firm or claiming or holding itself out to be an investment business firm without an authorisation as required in paragraph (
  2. a)or (
  3. b)of subsection
(1)of this section. (
  1. b)The supervisory authority shall endeavour to provide the investment business firm with seven days notice of its intention to publish in accordance with paragraph (
  2. a)of this subsection.”. Amendment of section 10 of Act of 1995. 54.—Section 10 of the Act of 1995 is hereby amended— (
  3. a)in subsection
(3)— (
  1. i)by the substitution for “Whenever a supervisory authority refuses” of “Whenever a supervisory authority decides to refuse”, (
  2. ii)by the substitution for “intention” of “decision”, (iii) by the designation of that subsection as paragraph (
  3. a)and the insertion after paragraph (
  4. a)of the following paragraphs: “(
  5. b)If the proposed investment business firm does not make an appeal within the period specified in paragraph (
  6. a)of this subsection, the supervisory authority shall issue to the proposed investment business firm notice of its decision to refuse to authorise it. (
  7. c)The supervisory authority shall publish notice of the refusal of authorisation to a proposed investment business firm in the Iris Oifigiúil and in one or more newspapers circulating in the State within 28 days of the decision to refuse the authorisation.”, and the subsection as so amended is set out in the Table to this paragraph. TABLE
(3)(
  1. a)Whenever a supervisory authority decides to refuse to grant authorisation to a proposed investment business firm under this section it shall serve notice on the proposed investment business firm of its decision to refuse to authorise it and stating the reasons therefore and the proposed investment business firm may within 21 days of receipt of such notice appeal to the Court against the decision. (
  2. b)If the proposed investment business firm does not make an appeal within the period specified in paragraph (
  3. a)of this subsection, the supervisory authority shall issue to the proposed investment business firm notice of its decision to refuse to authorise it. (
  4. c)The supervisory authority shall publish notice of the refusal of authorisation to a proposed investment business firm in the Iris Oifigiúil and in one or more newspapers circulating in the State within 28 days of the decision to refuse the authorisation. (
  5. b)in subsection
(5)by the insertion in paragraph (
  1. a)after “does not already exist,” of “or is an industrial or provident society,” and the paragraph as so amended is set out in the Table to this paragraph. TABLE (
  2. a)it is a company incorporated by statute or under the Companies Acts, or is incorporated outside the State or is a company made under Royal Charter or it draws up a partnership agreement, where it is constituted as an unincorporated body of persons, if such an agreement does not already exist, or is an industrial or provident society, or is a sole trader and the proposed investment business firm has made arrangements to ensure that its activities will be carried out in such a manner that the requirements of Article 3
(3)of Council Directive No. 93/22/EEC of 10 May 1993
(1), are complied with. Amendment of section 14 of Act of 1995. 55.—Section 14 of the Act of 1995 is hereby amended in subsection
(1)by the substitution for “Without prejudice to section 10 of this Act, where the supervisory authority grants an authorisation under that section, it may” of “The supervisory authority may, in respect of an authorised investment business firm, including an investment business firm which is deemed to be authorised under section 26 of this Act,” and the subsection as so amended is set out in the Table to this section. TABLE
(1)The supervisory authority may, in respect of an authorised investment business firm, including an investment business firm which is deemed to be authorised under section 26 of this Act, do all or any of the following, namely: (
  1. a)make its authorisation subject to such conditions or requirements, or both, as it considers fit, relating to the proper and orderly regulation and supervision of an authorised investment business firm, (
  2. b)impose conditions or requirements or both which relate to matters in an associated undertaking or a related undertaking, (
  3. c)at any time impose conditions or requirements or both on an authorised investment business firm and either amend or revoke any condition or requirement imposed under this paragraph or under paragraph (
  4. a)or (
  5. b)of this subsection: Provided the said conditions or requirements do not contravene any guidelines in that behalf which may be issued by the Minister to the supervisory authority from time to time in the interests of the proper and orderly regulation of investment business firms or the protection of investors or both and that the guidelines are published in the Iris Oifigiúil. Amendment of section 16 of Act of 1995. 56.—Section 16 of the Act of 1995 is hereby amended in subsection
(8)by the insertion after “Iris Oifigiúil” of “and in one or more newspapers circulating in the State” and the subsection as so amended is set out in the Table to this section. TABLE
(8)The supervisory authority shall publish notice of revocation of an authorisation of an authorised investment business firm in the Iris Oifigiúil and in one or more newspapers circulating in the State within 28 days of such revocation. Amendment of section 17 of Act of 1995. 57.—Section 17 of the Act of 1995 is hereby amended by the insertion after subsection
(3)of the following subsection: “
(4)The supervisory authority shall maintain a register or registers of investment business firms of which it has been informed by a competent authority in another Member State under Articles 17 and 18 of the Council Directive No. 93/22/EEC of 10 May, 1993 on investment services in the securities field
(1).”. Amendment of section 21 of Act of 1995. 58.—Section 21 of the Act of 1995 is hereby amended in subsection
(1)— (
  1. a)in paragraph (
  2. e)by the insertion after “authorised investment business firms” of “, former authorised investment business firms, proposed investment business firms or investment business firms” and the paragraph as so amended is set out in the Table to this paragraph. TABLE (
  3. e)directors and those responsible for the management of authorised investment business firms, former authorised investment business firms, proposed investment business firms or investment business firms, (
  4. b)in paragraph (
  5. f)by the insertion after “acting as” of “or on behalf of” and the paragraph as so amended is set out in the Table to this paragraph. TABLE (
  6. f)any person purporting to act or whom the supervisory authority reasonably believes is acting as or on behalf of an investment business firm, (
  7. c)by the insertion after paragraph (
  8. f)of the following paragraph: “(
  9. g)directors of that investment business firm or those responsible for the management of that investment b

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.