Stock Exchange Act , 1995

(8) If, in contravention of the provisions of subsection (1) or (2) of this section, or in contravention of a direction issued under this section, a person issues or causes to be issued an advertisement inviting persons to exercise any rights conferred by an investment or containing information calculated to lead directly or indirectly to persons doing so, then, subject to subsection (9) of this section—

(a) he shall not be entitled to enforce any obligation to which a person is subject as a result of any exercise by him after the issue of the advertisement of any rights to which the advertisement related; and

(b) that person shall be entitled to recover any money or other property or investment instruments paid or transferred by him under any such obligation, together with compensation for any loss sustained by him.

(9) The compensation recoverable under subsection (7) or (8) of this section shall be such as the parties may agree or as the Court may, on the application of either party, determine.

(10) The Court may allow any such agreement or obligation as is mentioned in subsection (7) or (8) of this section to be enforced or money or property or investment instruments paid or transferred under it to be retained if it is satisfied—

(a) that the person against whom enforcement is sought or who is seeking to recover the money or property or investment instruments was not influenced, or not influenced to any material extent, by the advertisements in making his decision to enter into the agreement or as to the exercise of the rights in question; or

(b) that the advertisement was not misleading as to the nature of the investment, the terms of the agreement or, as the case may be, the consequences of exercising the rights in question and that it fairly stated any risks involved in those matters.

(11) Where a person elects not to perform an agreement or an obligation which by virtue of subsection (7) or (8) of this section is unenforceable against him or by virtue of either of those subsections recovers money paid or other property or investment instrumentstransferred by him under an agreement or obligation he shall repay any money and return any other property or investment instruments received by him under the agreement or, as the case may be, as a result of exercising the rights in question.

(12) Where any property or investment instruments transferred under an agreement or obligation to which subsection (7) or (8) of this section applies has passed to a third party the references to that property or those investment instruments in this section shall be construed as references to the value of such property or investment instruments at the time of transfer under the agreement or obligation.

(13) If an advertisement or other solicitation to which this section relates is published and it does not include the name and address of the person who arranged with the publisher for the advertisement or solicitation, the Bank may, at any time within the period of 12 months after any publication of the advertisement or solicitation, request the publisher to supply the name and address of that person to the Bank and the publisher shall forthwith comply with that request.

(14) The Bank may—

(a) direct a person to publish a correction of a misleading advertisement concerning services of approved stock exchanges, or member firms, or

(b) direct a person to publish the correction of an advertisement which contravenes the provisions of this section, or

(c) direct a person to publish the fact that an offence under this section has taken place and that a fine, if any, has been imposed, or

(d) direct a person to publish the fact that a determination that there has been a breach of a condition or requirement under this section has been made under section 65 of this Act, or

(e) publish an advertisement correcting any misleading aspects of advertisements, published by approved stock exchanges or member firms.

(15) In this section—

“advertisement” includes every form of recommendation of any matter to which this section relates, including in particular the display or publication of any such matter by way of newspaper, leaflet, notice, circular, pamphlet, brochure, photograph, film, video, sound broadcasting, television, electronic communication or personal canvassing and references to the issue of advertisements shall be construed accordingly;

“established in Ireland” excludes any stock exchange which provides services electronically to Irish clients and whose head office or registered office is outside the State;

“specified” means specified in a direction under this section.

(16) Any person who fails to comply with a direction or a prescription imposed under subsection (5), (6) or (14) of this section, or whofails to comply with a request of the Bank under subsection (13) of this section, shall be guilty of an offence.

32 Exemptions from restrictions on advertising.

32.—(1) Section 31 of this Act shall not apply to a class of advertisement specified from time to time by the Bank for the purpose of exempting from that section—

(a) advertisements appearing to the Bank to have a private character, whether by reason of a connection between the person issuing them and those to whom they are issued or otherwise; or

(b) advertisements appearing to the Bank to deal with investments only incidentally; or

(c) advertisements issued to persons appearing to the Bank to be sufficiently expert to understand any risks involved.

(2) An exemption under subsection (1) of this section shall be subject to such conditions as may be specified by the Bank when granting the exemption.

PART V Auditors

33 Appointment of auditor.

33.—(1) The Bank may impose a requirement in writing on any approved stock exchange or authorised member firm—

(a) to notify the Bank at least 15 days—

(i) before notices are sent to shareholders concerning the proposed appointment or reappointment of a person to the office of auditor of an approved stock exchange or authorised member firm for the purposes of the Companies Acts, or

(ii) before the directors of an approved stock exchange or authorised member firm fill any casual vacancy in the office of auditor by virtue of section 160 (7) of the Companies Act, 1963,

of the name of the person to be so proposed, to be reappointed or to fill that vacancy,

(b) to supply, within such period of time as the Bank shall state, such information as it may request concerning the person named for the purpose of paragraph (a) of this subsection.

(2) Where the Bank is of the opinion that it would not be in the interest of investors or in the interest of the proper and orderly regulation of approved stock exchanges and their member firms, it may direct, as the circumstances require, that an approved stock exchange or an authorised member firm does not appoint or reappoint to the office of auditor, or that the directors do not fill a casual vacancy in the office with, a named person and the direction shall be complied with.

(3) Where the Bank gives a direction under subsection (2) of this section that an approved stock exchange or authorised member firmshall not reappoint a person to the office of auditor, that person may apply to the Court for an order to set aside the direction of the Bank.

34 Duties of auditor.

34.—(1) An authorised member firm which is constituted as an unincorporated body of persons shall be required to appoint an auditor to audit and make a report on its accounts on an annual basis and a person shall not be qualified for appointment as an auditor of an authorised member firm which is constituted as an unincorporated body of persons unless he meets the requirements of, and is not excluded by, the provisions of the Companies Acts.

(2) The Bank may set out requirements in respect of the accounts and audit of an authorised member firm which is constituted as an unincorporated body of persons including requirements which are analogous to those set out in the Companies Acts and may impose duties or obligations on the auditor or on the authorised member firm concerned.

(3) If at any time an auditor of an approved stock exchange or of an authorised member firm and, in the case of paragraphs (e) and (f) of this subsection, an auditor of a member firm which is not an authorised member firm—

(a) has reason to believe that there exist circumstances which are likely to affect to a material degree the ability of the approved stock exchange or the authorised member firm to fulfil its obligations to investors or clients or meet any of its financial obligations, or

(b) has reason to believe there are material defects in the accounting records or systems of control of the business and records, or

(c) has reason to believe that there are material inaccuracies in, or omissions from, any returns made by the said approved stock exchange or authorised member firm to the Bank, or

(d) proposes to qualify any report or certificate which he is to provide in relation to the financial statements or returns of the said approved stock exchange or authorised member firm under the Companies Acts, or under this Act, or

(e) has reason to believe that there are material defects in the system of any member firm for ensuring the safe custody of money of clients or investment instruments or has reason to believe that a member firm is not complying with client money requirements or rules or provisions of this Act, or

(f) has reason to believe that a member firm has breached to a material degree the rules of an approved stock exchange of which it is a member firm, or

(g) decides to resign or not to seek re-election as auditor,

he shall report the matter to the Bank in writing without delay.

(4) The auditor of an approved stock exchange or member firm, if requested to do so by the Bank, shall furnish to the Bank a reportstating whether in his opinion and to the best of his knowledge the approved stock exchange or member firm has or has not complied with—

(a) any condition or requirement set out or imposed under this Act in relation to financial resources, money of clients and investment instruments, accounting records and specified aspects of control systems or any or all of these,

(b) any condition or requirement set out in or imposed under this Act,

and the Bank may specify that such a report be furnished to it in such form as it may specify either on an annual basis or on such other occasion as the Bank may specify or both.

(5) Where the auditor of an approved stock exchange or member firm so requests, the Bank may provide to the auditor, in writing, details of any information of a financial nature concerning the said approved stock exchange or member firm as the auditor requests for the purpose of enabling him to comply with this Act.

(6) An auditor of an approved stock exchange or member firm shall send to the approved stock exchange or member firm concerned a copy of any report made by him to the Bank under subsection (3) or (4) of this section.

(7) An auditor of an approved stock exchange or authorised member firm shall communicate to the Bank any matters which come to the attention of the auditor and are such as to give the auditor reasonable cause to believe that the matter is or may be of material significance for determining either—

(a) whether a person's competence is satisfactory having regard to the matters with which they would be concerned in relation to the business of an approved stock exchange or authorised member firm and their probity is such as to render them suitable to carry on the business of an approved stock exchange or authorised member firm; or

(b) whether disciplinary action should be taken, or a direction given, by reason of a person's contravention of any provision of this Act, or any conditions or requirements, or both, or directions imposed by the Bank under this Act.

(8) (a) Where the Bank is of the opinion that the exercise of its functions under this Act or the protection of investors or clients or the interest of the proper and orderly regulation of approved stock exchanges and their member firms so requires, it may require the auditor of an approved stock exchange or member firm to supply it with such information as it may specify in relation to the audit of the business of the said approved exchange or member firm and the auditor shall comply with the requirement.

(b) The Bank may require that, in supplying information for the purposes of this subsection, the auditor shall act independently of the approved stock exchange or member firm.

(9) No duty to which an auditor of an approved stock exchange or member firm may be subject shall be regarded as contravened and no liability to the approved stock exchange or member firm orto the shareholders, creditors, investors, clients or other interested parties of any approved stock exchange or member firm shall attach to the auditor by reason of his compliance with any obligation imposed on him by or under this section.

(10) It shall be the duty of an auditor in preparing a report under this section to carry out such investigations as will enable him to form an opinion as to whether—

(a) the approved stock exchange or authorised member firm has kept proper accounting records;

(b) the approved stock exchange or authorised member firm has maintained satisfactory systems of control of its business and records and systems of inspection and report thereon; and

(c) the approved stock exchange or authorised member firm has complied with rules or requirements relating to client money and investment instruments referred to in section 52 of this Act and with the provisions of sections 52 (3) and 52 (4) of this Act;

and where an auditor is of the opinion that the approved stock exchange or authorised member firm has failed to keep proper accounting records or to maintain a satisfactory system of control of its business or records or to comply with rules or requirements relating to client money and investment instruments referred to in paragraph (c) of this subsection and with the provisions of sections 52 (3) and 52 (4) of this Act he shall so state in his report.

(11) An auditor of an approved stock exchange or authorised member firm shall have a right of access at all reasonable times to the books, accounts, records and vouchers of the approved stock exchange or authorised member firm and to all other documents relating to its affairs (including documents and records relating to clients' money and investment instruments), and shall be entitled to require from the officers, directors, managers and employees of the said approved stock exchange or authorised member firm such information and explanations as are within their knowledge or can be procured by them as he thinks necessary for the performance of the duties of auditor.

(12) Subject to subsection (15) of this section, where an approved stock exchange or authorised member firm has a related undertaking or associated undertaking, then—

(a) if the associated undertaking or related undertaking is a body incorporated in the State, it shall be the duty of the associated undertaking or related undertaking and its auditors to give to the auditors of the approved stock exchange or authorised member firm, as the case may be, such information and explanation and such access to documents as those auditors may reasonably require for the purpose of their duties as auditors of the approved stock exchange or authorised member firm concerned; and

(b) in any other case, it shall be the duty of the approved stock exchange or authorised member firm, if required by its auditors to do so, to take all such steps as are reasonably open to it to obtain from the related undertaking orassociated undertaking such information and explanation and such access as are mentioned in paragraph (a) of this subsection.

(13) The Bank may set out requirements in respect of the audit of approved stock exchanges or authorised member firms and such requirements may relate to the communication of specified matters to the Bank which may include matters relating to an associated undertaking or related undertaking.

(14) Any report requested by the Bank under this section shall be prepared at the expense of the approved stock exchange or member firm concerned and shall be carried out and made within such time as may be specified by the Bank or within such further time as the Bank may allow.

(15) An associated undertaking or a related undertaking may apply to the Court for an order prohibiting the auditor of an approved stock exchange or authorised member firm from requesting particular information or classes of information under this section from that associated undertaking or related undertaking on the basis that it is unreasonable and unnecessary for the auditor to request that information.

35 False statements to auditors.

35.—(1) An officer or employee of an approved stock exchange or authorised member firm or of an associated undertaking or related undertaking who knowingly or recklessly makes a statement to which this section applies that is misleading, false or deceptive in a material particular shall be guilty of an offence.

(2) This section applies to any statement made to the auditors of an approved stock exchange or authorised member firm (whether orally or in writing) which conveys, or purports to convey, any information or explanation which they require under this Act, or are entitled so to require, as auditors of the approved stock exchange or authorised member firm.

(3) An officer or employee of an approved stock exchange or an authorised member firm or an associated undertaking or related undertaking who fails to provide to the auditors of the approved stock exchange or authorised member firm, within such period of time as the auditor, after consultation with the Bank, may specify, being not less than two days (not including a Saturday, a Sunday or a public holiday) from the making of the relevant inquiry, any information or explanations that the auditors require as auditors of the approved stock exchange or authorised member firm and that is within the knowledge of or can be procured by the officer or employee shall be guilty of an offence.

(4) In a prosecution for an offence under this section, it shall be a defence for the defendant to show that it was not reasonably possible for him to comply with the requirements under subsection (3) of this section to which the offence relates within the time specified in that subsection but that he complied therewith as soon as was reasonably possible after the expiration of such time.

(5) In this section “officer”, in relation to an associated undertaking or related undertaking of an approved stock exchange or authorised member firm, includes an auditor.

PART VI Miscellaneous

36 Power to require a second audit.

36.—(1) If, on the basis of the information obtained through the first audit, the Bank has a real and substantial concern about the audited accounts of an approved stock exchange or an authorised member firm, it may direct the approved stock exchange or authorised member firm to submit for examination by a person appointed by the Governor of the Bank or by such other person designated by the Governor for the purpose of appointing persons (including an auditor) any or all of the following, namely—

(a) any accounts on which the auditor of that approved stock exchange or authorised member firm has reported or any information which has been verified by that auditor,

(b) any information as is specified in the direction,

and the person making the examination shall report his conclusions to the Bank.

(2) The person carrying out an examination under this section shall have all the powers that are available to an auditor under this Act and under the Companies Acts and it shall be the duty of the auditor of an approved stock exchange or authorised member firm to afford him all such assistance as he may require.

(3) Where a report made under this section relates to accounts which under any enactment are required to be sent to, or made available for inspection by, any person or to be delivered for registration, the report, or any part of it (or a note that such a report has been made) may be similarly sent, made available or delivered by the Bank.

(4) An officer or employee of an approved stock exchange or authorised member firm or of an associated or related undertaking who knowingly or recklessly makes a statement to a person appointed under this section that is false or misleading or deceptive in a material particular shall be guilty of an offence.

(5) If any officer, employee, shareholder or agent of the approved stock exchange or authorised member firm or associated undertaking or related undertaking refuses to produce to the person appointed under this section any book or document which it is his duty under this section to produce, refuses to attend before the person appointed under this section when required to do so, or refuses to answer any question put to him by the person appointed under this section with respect to the affairs of the approved stock exchange or authorised member firm or associated undertaking or related undertaking, the person appointed under this section may certify the refusal under his hand to the Court and the Court may thereupon inquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, employee, shareholder or agent of the approved stock exchange or authorised member firm or associated undertaking or related undertaking and any statement which may be offered in defence, make any order or direction as it thinks fit including a direction to the person concerned to attend or re-attend before the person appointed under this section or produce particular books or documents or answer a particular question put to him by the person appointed under this section, or a direction that the person concernedneed not produce a particular book or document or answer a particular question put to him by the person appointed under this section.

(6) The expenses of and incidental to an examination under this section may be paid in the first instance by the Bank.

37 Employment of disqualified person.

37.—(1) (a) If the Bank becomes aware that the probity of any officer or employee of an approved stock exchange or authorised member firm is such so as to render him unsuitable to act as an officer or employee of an approved stock exchange or authorised member firm, the Bank may, on notice to the person concerned and on notice to the approved stock exchange or authorised member firm concerned, apply to the Court to issue a direction to direct the approved stock exchange or authorised member firm concerned to have the officer concerned removed or to dismiss the employee concerned from their employment.

(b) If the Bank becomes aware that any officer or employee of an approved stock exchange or authorised member firm is not competent in respect of matters of the kind with which he would be concerned as an officer or employee of an approved stock exchange or an authorised member firm, the Bank may, on notice to the person concerned and on notice to the approved stock exchange or authorised member firm, apply to the Court to issue a direction to direct the approved stock exchange or authorised member firm concerned to have the officer concerned removed, or suspended for a specified period of time, or to dismiss the employee concerned from their employment or to remove that employee from a particular area of their employment.

(2). The Court may make such interim or interlocutory orders as it considers necessary under this section.

(3) Subject to subsection (5) of this section, a person who is the subject of a direction under subsection (1) of this section may not, without the written consent of the Bank, be employed in any capacity in connection with an approved stock exchange or authorised member firm or any other entity which the Bank supervises or regulates as part of its statutory functions.

(4). A direction under this section (to be known and in this section referred to as “a disqualification direction”) shall specify the date on which it is to take effect and a copy of it shall be served on the person to whom it relates.

(5) The Bank may consent to the employment of a person who is the subject of a disqualification direction and such consent may—

(a) relate to employment with any entity which the Bank supervises or regulates as part of its statutory functions generally or to employment of a particular kind,

(b) be given subject to conditions or requirements or both, and

(c) be varied by the Bank from time to time.

(6) Any person who accepts or continues in any employment in contravention of a disqualification direction shall be guilty of an offence.

(7) An approved stock exchange or an authorised member firm or any entity supervised or regulated by the Bank under this Act or any other enactment shall take reasonable care not to employ or continue to employ a person in contravention of a disqualification direction.

(8) A person who is the subject of a disqualification direction may apply to the Court to revoke that direction at any time.

(9) The Bank may apply to the Court to revoke a disqualification direction at any time.

(10) Where the Bank refuses consent under subsection (5) of this section, the person who is the subject of a disqualification direction may appeal to the Court against that decision and the Court may make such order as it considers necessary including making an interim or interlocutory order.

38 Codes of conduct.

38.—(1) Subject to subsection (2) of this section, the Bank shall draw up and issue a code of conduct for approved stock exchanges or member firms or both which shall include provisions which seek to ensure that a member firm—

(a) acts honestly and fairly in conducting its business activities in the best interests of its clients and the integrity of the market,

(b) acts with due skill, care and diligence, in the best interests of its clients and the integrity of the market,

(c) has and employs effectively the resources and procedures that are necessary for the proper performance of its business activities,

(d) seeks from its clients information regarding their financial situations, investment experience and objectives as regards the services requested,

(e) makes adequate disclosure of relevant material information in its dealings with its clients,

(f) makes a reasonable effort to avoid conflicts of interests and, when they cannot be avoided, ensures that its clients are fairly treated, and

(g) complies with all regulatory requirements applicable to the conduct of its business activities so as to promote the best interests of its clients and the integrity of the market,

and the Bank may impose conditions or requirements on a member firm in respect of compliance with the provisions of such a code of conduct.

(2) Subsection (1) of this section shall not apply where an approved stock exchange has drawn up and maintains in force rules of conduct in respect of matters referred to in paragraphs (a) to (g) of that subsection.

(3) The code of conduct or rules of conduct or both, referred to in subsections (1) and (2) of this section, may be applied in such a way or to such an extent as to take account of the status or experience of the person for whom the services are provided.

(4) The code of conduct or rules of conduct or both, referred to in subsections (1) and (2) of this section, may include criteria for distinguishing between different categories of investor for the purposes of this section.

39 Acquiring transactions.

39.—(1) In this Part, “acquiring transaction” shall be construed in accordance with subsection (2) of this section and “disposal” shall be construed in accordance with subsection (3) of this section.

(2) In this Part “acquiring transaction” means any direct or indirect acquisition by a person or more than one person acting in concert of shares or other interest in an approved stock exchange or authorised member firm, provided that, after the proposed acquisition—

(a) the proportion of voting rights or capital held by the person or persons making the acquiring transaction would exceed a qualifying holding, or

(b) the proportion of voting rights or capital held by the person or persons making the acquiring transaction would reach or exceed 20 per cent., 33 per cent. or 50 per cent., or

(c) the approved stock exchange or authorised member firm would become a subsidiary of the acquirer.

(3) In this Part “disposal” means any direct or indirect disposal by a person or more than one person acting in concert of a qualifying holding or a disposal which would reduce such a qualifying holding so that the proportion of the voting rights or of the capital held by the person or persons would fall below 20 per cent., 33 per cent. or 50 per cent. or so that the approved stock exchange or authorised member firm would cease to be its subsidiary.

40 Notification of certain transactions.

40.—(1) Any person who proposes to make an acquiring transaction shall notify the Bank in writing of the proposal as soon as may be and such notification shall include such information concerning the proposed acquiring transaction as may be specified by the Bank from time to time.

(2) Any person who proposes to make a disposal shall notify the Bank in writing of the proposal as soon as may be and such notification shall include such information concerning the proposed disposal as may be specified by the Bank from time to time.

(3) On becoming aware of any proposals of the type referred to in subsection (1) or (2) of this section, the authorised member firm or approved stock exchange concerned shall inform the Bank of such proposed acquiring transactions or disposals that cause holdings to exceed or fall below a qualifying holding or 20 per cent., 33 per cent. or 50 per cent. of the capital held or voting rights, or that cause theapproved stock exchange or authorised member firm to become, or cease to be, a subsidiary.

(4) Where, having received a notification under this section, the Bank is of the opinion that in order to consider, for the purposes of this section, a proposed acquiring transaction, it requires further information, it may, within one month of the date of receipt by it of a notification, request such further information in writing from any one or more of the undertakings concerned.

(5) The Bank may approve of, or approve of subject to conditions or requirements or both, or may refuse to approve of an acquiring transaction.

41 Approval of acquiring transactions.

41.—An acquiring transaction shall not proceed until the Bank has informed the authorised member firm or approved stock exchange and the party making the acquiring transaction in writing that it approves of the acquiring transaction or until three months have elapsed during which the Bank has not refused to approve of the acquiring transaction, whichever first occurs, such period beginning on the date on which the Bank first receives a notification under section 40 of this Act, or, where the Bank requests further information from the person or persons concerned under section 40 (4) of this Act, the date of receipt by the Bank of such information.

42 Period for implementing acquiring transactions.

42.—Where the Bank approves of an acquiring transaction, it may specify in writing a period for the implementation of that transaction.

43 Imposition by Bank of conditions or requirements in respect of proposed acquiring transactions.

43.—(1) An approval given by the Bank to a proposed acquiring transaction shall be subject to such conditions or requirements or both as the Bank may impose (being conditions or requirements which in the opinion of the Bank are necessary for the orderly and proper regulation of approved stock exchanges and authorised member firms).

(2) The Bank may, at any time, amend or revoke such conditions or requirements or both referred to in subsection (1) of this section.

44 Limitation on validity of certain acquiring transactions.

44.—Subject to section 42 of this Act, an acquiring transaction shall only be valid if it is entered into—

(a) within 12 months of the Bank giving its approval in writing to the transaction, or

(b) within 12 months of the end of the three month period referred to in section 41 of this Act,

and, accordingly, any purported acquiring transaction which does not comply with either paragraph (a) or (b) of this section shall be invalid and—

(i) title to any shares or other interest shall not pass, and

(ii) any consequential purported exercise of powers relating to such shares or other interest shall be invalid.

45 Refusal by Bank to approve acquiring transactions.

45.—(1) The Bank shall refuse to approve an acquiring transaction where it is not satisfied as to the suitability of the person proposing the acquiring transaction or where the Bank considers thatthe acquiring transaction is likely to be prejudicial to the sound and prudent management of the approved stock exchange or authorised member firm or the proper regulation of the approved stock exchange or authorised member firm or both.

(2) Where the Bank refuses to approve an acquiring transaction or where the Bank becomes aware of a proposed acquiring transaction of which it has not been notified under section 40 of this Act, the Bank may issue a direction under section 29 of this Act to the directors and those responsible for the management of the approved stock exchange or authorised member firm concerned.

46 Appeals to Court.

46.—(1) Where the Bank informs a person making an acquiring transaction in accordance with section 40 of this Act that it—

(a) refuses to give its approval to that transaction, or

(b) gives its approval subject to conditions or requirements,

an appeal may be made by that person to the Court against the refusal or the conditions or requirements attached to the approval, as the case may be, within one month of that refusal or approval being so communicated.

(2) Where the Court allows the appeal, it shall direct the Bank to make a decision in accordance with the determination of the Court and the Bank shall make its decision within the period of three months beginning on the date of the determination of the Court.

(3) Where the Court is satisfied, because of the nature or the 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 heard otherwise than in public.

47 Inquiries by Bank into acquiring transactions.

47.—(1) The Bank may carry out such inquiries and obtain such information as it considers necessary to enable it to consider a proposed acquiring transaction.

(2) Any person who wilfully or knowingly obstructs or prevents inquiries by the Bank under this section or knowingly or recklessly provides false or misleading information shall be guilty of an offence.

48 Obligation to inform Bank of shareholdings, etc.

48.—(1) At least once in each year, approved stock exchanges and authorised member firms shall inform the Bank of the names of direct shareholders and members possessing qualifying holdings and the sizes of such holdings.

(2) At least once in each year, approved stock exchanges and authorised member firms, having made best efforts to ascertain the identity of all indirect shareholders and members possessing qualifying holdings, shall inform the Bank of the names of such persons.

49 Other enactments relating to acquiring transactions.

49.—(1) Nothing in any other enactment shall be construed as relieving an approved stock exchange or an authorised member firm or other person of any of its obligations to comply with subsections (1), (2) and (3) of section 40 of this Act.

(2) An order under section 201 or 203 of the Companies Act, 1963, in respect of a proposed amalgamation (being an acquiring transaction) shall not be made until the Bank has given its approval to the acquiring transaction or the period referred to in section 41 has elapsed without the Bank having given or refused to give approval.

50 Amendment of section 16 of Central Bank Act, 1989.

50.—Section 16 of the Central Bank Act, 1989, is hereby amended by—

(a) the substitution in subsection (1) of “unless such disclosure is to enable the Bank to carry out its statutory functions” for “unless such disclosure is to enable the Bank to carry out its functions under the Central Bank Acts, 1942 to 1989 or under any enactment amending those Acts” and the subsection as so amended is set out in the Table to this section;

(b) the substitution for subsection (2) (e) of the following paragraph:

“(e) made to an authority in a jurisdiction other than that of the State duly authorised to exercise functions similar to any one or more of the statutory functions of the Bank and which has obligations in respect of non-disclosure of information similar to the obligations imposed on the Bank under this section.”;

(c) the insertion in subsection (2) of the following paragraphs:

“(h) made to any approved stock exchange (within the meaning of the Stock Exchange Act, 1995) in respect of member firms of that stock exchange for the purpose of monitoring compliance by member firms with stock exchange rules or with conditions or requirements imposed by the Bank or both, or where the Bank considers it necessary to do so either for the proper and orderly regulation of stock exchanges and their member firms, or for the protection of investors, or both,

(i) made to a financial futures and options exchange within the meaning of section 97 of this Act whose rules have been approved by the Bank under Chapter VIII of this Act for the purpose of monitoring compliance by the members of that exchange with the rules or with conditions or requirements imposed by the Bank, or both, or where the Bank considers it necessary to do so for the proper and orderly regulation of such futures and options exchanges and their members,

(j) made to a Committee appointed under section 65 of the Stock Exchange Act, 1995,

(k) made to an inspector appointed under section 57 of the Stock Exchange Act, 1995,

(l) made to any body which is a competent authority for the purpose of Council Directive 93/22/EEC of 10 May, 1993[^(1)] or Council Directive 93/6/EEC of 15 March, 1993^(1),”;

(d) the insertion of the following subsection:

“(6) In this section, ‘statutory functions’ has the meaning assigned to it by section 3 of the Stock Exchange Act, 1995.”.

TABLE

(1) A person, who at the commencement of this section is, or at any time thereafter is appointed. Governor or a Director, officer or servant of the Bank or who is employed by the Bank in any other capacity, shall not disclose, during his term of office or employment or at any time thereafter, any information concerning—

(a) the business of any person or body (whether corporate or unincorporate) which came to his knowledge by virtue of his office or employment, or

(b) the Bank's activities in respect of the protection of the integrity of the currency or the control of credit,

unless such disclosure is to enable the Bank to carry out its statutory functions.

51 Investor compensation.

51.—A member firm shall not engage in business with clients and investors unless, and in accordance with any procedures to be set out in the rules of an approved stock exchange, it informs clients and investors of—

(a) whether or not there is a compensation fund or protection of comparable form, and

(b) the nature and level of protection, if any, available from any such fund.

52 Client money and investment instruments.

52.—(1) The Bank may, from time to time, impose requirements or may approve of rules in the rules of an approved stock exchange, or both, with respect to clients' money and clients' investment instruments, and such requirements or rules (in this Act referred to as “client money requirements”) may include conditions under which member firms may hold money or investment instruments, or both, for clients.

(2) Without prejudice to the generality of subsection (1) of this section, client money requirements may include requirements or rules in relation to—

(a) the category or categories of member firm to which such requirements or rules apply;

(b) the type or types of accounts to be opened and kept by a member firm arising from its business as a member firm;

(c) the rights, duties and responsibilities of a member firm in relation to money and investment instruments received, held, controlled or paid by it arising from its business as a member firm, including the lodgement to and withdrawal from a client account of client money and client investment instruments;

(d) the acknowledgements or statements to be issued by a member firm in respect of client money and client investment instruments received, held, controlled or paid by it arising from its business as a member firm;

(e) the circumstances in which money other than client money ay be paid into accounts containing client money and the circumstances in which, and the persons to whom, money held in such accounts may be paid out;

(f) the safekeeping of client investment instruments and documents of title relating to such investment instruments;

(g) the use of nominee companies by member firms;

(h) client entitlements, including the treatment or retention of interest, income or profit arising from any client money or investment instrument or documents of title in such cases as may be specified;

(i) the extent to which such client money requirements apply to associated and related undertakings.

(3) Without prejudice to the generality of subsection (1) of this section and notwithstanding the provisions of subsection (2) of this section, an authorised member firm shall—

(a) designate all accounts containing money entrusted to it or received by it for or on account of a client a “Section 52 account” in all financial records maintained by it,

(b) hold client money in an account or accounts with an institution or type of institution as may be specified by the Bank from time to time,

(c) keep at an office or offices within the State such books and records (including books of accounts) in respect of client money and client investment instruments as may be specified from time to time by the Bank and notify the Bank of the address of every office at which any such books or records are kept,

(d) ensure that any books or records required under this section are examined, at such intervals as may be specified by the Bank, by an auditor who shall report to the Bank and state whether in his opinion the provisions of the client money requirements imposed or rules approved under subsection (1) of this section and the provisions of this subsection have been complied with and on such other matters as may be specified in the client money requirements imposed under subsection (1) of this section,

and an authorised member firm which does not comply with the provisions of paragraph (a) or (c) of this subsection or which does not ensure that books and records kept in respect of client money and client investment instruments are examined by an auditor at such intervals as shall be specified by the Bank or which knowingly holds client money in an account or accounts with an institution other than an institution or type of institution as may be specified by the Bank from time to time, shall be guilty of an offence.

(4) (a) The Bank may specify different books and records for the purposes of this section and in relation to different member firms or different classes of member firms.

(b) Books and records to be kept pursuant to this section shall be—

(i) in addition to any books or other records to be kept by or under any other section of this Act or any other enactment, and

(ii) retained for at least such period as the Bank may specify.

(5) No liquidator, receiver, administrator, examiner or creditor of a member firm shall have or obtain any recourse or right against a client's money or a client's investment instruments or a client's documents of title relating to such investment instruments received, held, controlled or paid on behalf of the client until all proper claims of the client or of the client's heirs, successors or assigns against the client's money or the client's investment instruments or documents of title have been satisfied in full.

(6) A person with which an account is kept in pursuance of client money requirements or rules under this section shall not incur any liability as constructive trustee where money is wrongfully paid from the account unless the person permits the payment with knowledge that the payment is wrongful or having deliberately failed to make inquiries in circumstances in which a reasonable and honest person would have done so.

(7) It shall be an offence for a director, officer or employee of a member firm or any of them to misappropriate fraudulently any money or investment instruments held, controlled or paid on behalf of a client by that member firm.

53 Exemption from liability for damages.

53.—(1) The Bank or any officer or any employee of the Bank or any member of its Board or any member of a committee appointed under section 65 of this Act 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) Neither an approved stock exchange nor any of its officers, nor any employee nor any member of its Board shall be liable in damages for anything done or omitted in the discharge or purported discharge of any functions carried out in the exercise of a public duty under this Act unless it is shown that the act or omission was in bad faith.

(3) Without prejudice to the generality of subsection (1) of this section, the approval or revocation of approval or supervision or regulation of a stock exchange or the approval, amendment, revocation or imposition of rules or the consent or refusal to consent to amendments of rules shall not constitute a warranty as to the solvency or performance of an approved stock exchange or a member firm and neither the State nor the Bank shall be liable in respect of any loss or losses arising out of the insolvency or default or performance of any approved stock exchange or member firm.

(4) Without prejudice to the generality of subsection (1) of this section, the authorisation, supervision, regulation or revocation of authorisation of a member firm under this Act shall not constitute awarranty as to the solvency or performance of a member firm and neither the State nor the Bank shall be liable in respect of any losses incurred through the insolvency, default or performance of the member firm.

54 Personal liability of officers.

54.—(1) If—

(a) an approved stock exchange or authorised member firm is being wound up and is unable to pay all of its debts and has contravened section 15, 27 or 52 (3) of this Act, and

(b) the Court considers that such contravention has contributed to the inability of the approved stock exchange or authorised member firm to pay all of its debts or has resulted in substantial uncertainty as to the amount, location, ownership or otherwise of the assets and liabilities of the approved stock exchange or authorised member firm or of the money or investment instruments of clients of the said approved stock exchange or authorised member firm or has substantially impeded its orderly winding-up,

the Court, on the application of the liquidator or receiver or the Bank or any creditor or client or investor, may, if it thinks it proper to do so, declare that any one or more of the officers or former officers or both of the said approved stock exchange or authorised member firm who is or are in default shall be personally liable, without any limitation of liability, for all, or such part as may be specified by the Court, of the debts and other liabilities of the said approved stock exchange or authorised member firm.

(2) (a) Where the Court makes a declaration under subsection (1) of this section, it may give such directions as it thinks proper for the purpose of giving effect to the declaration and in particular may make provision for making the liability of any such person under the declaration a charge on any debt or obligation due from the approved stock exchange or authorised member firm to him, or on any mortgage or charge or any interest in any mortgage or charge on any assets of the approved stock exchange or authorised member firm held by or vested in him or any company or other person on his behalf, or any person claiming as assignee from or through the person liable under the declaration or any company or person acting on his behalf, and may from time to time make such further order as may be necessary for the purpose of enforcing any charge imposed under this subsection.

(b) In paragraph (a) of this subsection “assignee” includes any person to whom or in whose favour, by the directions of the person liable, the debt, obligation or mortgage was created, issued or transferred or the interest created but does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the grounds of which the declaration is made.

(3) The Court shall not make a declaration under subsection (1) of this section in respect of a person if it considers that—

(a) he took all reasonable steps to secure compliance by the approved stock exchange or authorised member firm with section 15, 27 or 52 (3) of this Act, or

(b) he had reasonable grounds for believing and did believe that a competent and reliable person, acting under the supervision or control of a director who has been formally allocated such responsibility, was charged with the duty of ensuring that section 15, 27 or 52 (3) of this Act was complied with and was in a position to discharge that duty.

(4) This section shall have effect notwithstanding that the person concerned may be liable to be prosecuted for a criminal offence in respect of the matters on the ground of which the declaration is to be made or that such person has been convicted of such an offence.

(5) In this section “officer”, in relation to an approved stock exchange or authorised member firm, includes a person who has been convicted of an offence under section 194 of the Companies Act, 1990 or section 35 or 70 (7) of this Act, in relation to a statement concerning the keeping of proper accounting records by the approved stock exchange or authorised member firm concerned.

(6) A person who, being a director of an approved stock exchange or authorised member firm, fails to take all reasonable steps to secure compliance by the approved stock exchange or authorised member firm with the requirements of section 15, 27 or 52 (3) of this Act or has by his own wilful act been the cause of any default by the approved stock exchange or authorised member firm thereunder, shall be guilty of an offence:

Provided, however, that—

(a) in any proceedings against a person in respect of an offence under this section consisting of a failure to take reasonable steps to secure compliance by the approved stock exchange or authorised member firm with the requirements of this section, it shall be a defence to prove that he had reasonable grounds for believing and did believe that a competent and reliable person was charged with the duty of ensuring that those requirements were complied with and was in a position to discharge that duty, and

(b) a person shall not be sentenced to imprisonment for such an offence unless, in the opinion of the Court, the offence was committed wilfully.

PART VII Enforcement, Offences and Penalties

55 Authorised officers.

55.—(1) The Governor of the Bank or any other person appointed by him for that purpose may authorise in writing such and so many persons to be authorised officers for the purposes of this Act and may revoke such authorisations.

(2) Every person who is appointed to be an authorised officer pursuant to this section shall be furnished with a certificate of appointment and shall, if so required, when exercising any power conferred on him by this Act, produce such certificate or a copy of it duly authenticated by the Governor of the Bank or such other person appointed by the Governor of the Bank for that purpose and a form of personal identification.

56 Powers of authorised officers.

56.—(1) The powers conferred by this section may be exercised in respect of a proposed stock exchange, an approved stock exchange, a former approved stock exchange, a proposed member firm, an authorised member firm, a member firm or a former authorised member firm, or associated undertaking or related undertaking and those persons shall be referred to in this section as “persons to whom this section applies”.

(2) An authorised officer may, for the purpose of obtaining any information which the Bank may require for enabling it to exercise any of its functions under this Act, do any one or more of the following things:

(a) enter at all reasonable times any premises in which he reasonably believes there are any books, documents or records relating to the activities of persons to whom this section applies,

(b) inspect or take copies of or extracts from and make such inquiries and do other acts as he may consider necessary in relation to—

(i) the books and records kept by persons to whom this section applies, including books and records kept pursuant to sections 15 and 27 of this Act,

(ii) any books of account relating to the said persons kept under the Companies Acts, and

(iii) any other documents relating to the business of the said persons,

(c) require any person employed in the premises to produce to him any books, documents or records which are in such person's control, possession or procurement and which such authorised officer has reasonable grounds for believing to be records, books or documents relating to the activities of any persons to whom this section applies and to give him such information as he may reasonably require in regard to any entries in any such records, books or documents,

(d) require any person employed in the premises to prepare a report on specified aspects of the business of the persons to whom this section applies or to explain entries in any documents or other materials furnished.

(3) A person who has in his power, possession or procurement any books, records or other documents aforesaid shall—

(a) produce them at the request of an authorised officer and permit him to inspect and take copies of, or extracts from, them;

(b) at the request of an authorised officer, give any information which may be reasonably required with regard to them, and

(c) give such other assistance and information to an authorised officer as is reasonable in the circumstances.

(4) Where any person from whom production of a book, record or other document is required claims a lien thereon, the production of it shall be without prejudice to the lien.

(5) Nothing in this section shall compel the production by a barrister or solicitor of a book, record or other document containing a privileged communication made by him or to him in that capacity or the furnishing of information contained in a privileged communication so made.

(6) An approved stock exchange or member firm and any person carrying on the business of an associated or related undertaking to which this section relates shall each furnish the Bank—

(a) at such times as the Bank may specify, from time to time, such information and returns concerning the business to which the approval, authorisation or business of the associated undertaking or related undertaking relates, as the Bank may specify from time to time, being information and returns which the Bank considers it necessary to have for the due performance of its functions under this Act; and

(b) within such period as the Bank may specify, any information and returns (not being information or returns specified under paragraph (a) of this subsection) concerning the business to which the approval, authorisation or business of the associated undertaking or related undertaking relates that the Bank may request in writing, being information and returns which the Bank considers it necessary to have for the due performance of its functions under this Act.

(7) This section shall apply to the business of an associated undertaking or related undertaking to the extent only that the information and returns sought by the Bank are, in the opinion of the Bank, materially relevant to the proper appraisal of the business of the approved stock exchange or authorised member firm to which the associated or related undertaking relates.

(8) A requirement under this section may be imposed on a person outside the State to whom this section applies.

(9) The duty to produce or provide any information, document, material or explanation extends to a liquidator or receiver or any person who is or has been an officer or employee or agent of the persons to whom this section applies, or who appears to the Bank or the authorised officer to have the information, document, material or explanation in his possession or under his control.

(10) In this section—

(a) “specified” means specified under this section;

(b) “agent”, in relation to a person to whom this section applies or any associated or related undertaking, includes past as well as present agents, as the case may be, and includes its bankers, accountants, solicitors, auditors and its financial and other advisors, whether or not those persons are officers or persons to whom this section applies.

(11) If any officer, employee, shareholder or agent of a person to whom this section applies refuses to produce to an authorised officerwhen requested to do so any book or document which it is his duty under this section to produce, or refuses to co-operate with an authorised officer when required to do so, or refuses to answer any question put to him by an authorised officer with respect to the affairs of the person to whom this section applies, the authorised officer may certify the refusal under his hand to the Court and the Court may thereupon inquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, employee, shareholder or agent of the person to whom this section applies and any statement which may be offered in defence, make any order or direction as it thinks fit including a direction to the person concerned to attend or re-attend before the authorised officer or produce particular books or documents or answer a particular question put to him by the authorised officer, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the authorised officer.

57 Appointment of inspector by Court.

57.—(1) Without prejudice to the powers of the Bank under this Act, where the Bank is of the opinion that it is in the interest of the proper and orderly regulation of approved stock exchanges or their member firms or the protection of investors that an investigation should be held into the affairs of an approved stock exchange or authorised member firm, the Bank may apply to the Court and the Court, as it thinks proper, may appoint one or more inspectors to investigate the affairs of that approved stock exchange or that authorised member firm and, where necessary, any subsidiary or other associated or related undertaking and to report thereon in such manner as the Court directs.

(2) Before applying to the Court to appoint an inspector under this section, the Bank may, if it is of the opinion that it would not be prejudicial to the interests of shareholders or creditors or investors, notify the approved stock exchange or authorised member firm concerned in writing of the action which it proposes to take and of the grounds on which it proposes to take it and, in such a case, the approved stock exchange or authorised member firm shall, within such period as the Bank may set out in the notification, be entitled to give to the Bank a statement in writing explaining its activities.

58 Power of inspector to extend investigation.

58.—Where an inspector appointed under section 57 of this Act to investigate the affairs of an approved stock exchange or authorised member firm or any subsidiary or other associated or related undertaking thinks it necessary for the purposes of his investigation to investigate the affairs of any other approved stock exchange or authorised member firm or any body corporate or any undertaking which is or was at any relevant time a subsidiary or an associated undertaking or related undertaking of the first-mentioned approved stock exchange or authorised member firm, he shall, with the approval of the Court, have power to do so, and shall report on the affairs of the other approved stock exchange or authorised member firm or body corporate or undertaking or associated undertaking or related undertaking so far as he thinks the results of his investigation are relevant to the investigation of the affairs of the first-mentioned approved stock exchange or authorised member firm.

59 Direction to inspector by Court.

59.—Where the Court appoints an inspector under section 57 of this Act, it may, from time to time, give such directions as it thinks fit, whether to the inspector or otherwise, with a view to ensuring that the investigation is carried out as efficiently and as effectively as is practicable in the circumstances.

60 Powers of inspection.

60.— (1) It shall be the duty—

(a) of all officers, employees, shareholders and agents of an approved stock exchange or authorised member firm or other body the affairs of which are being investigated under section 57 or 64 of this Act including officers, shareholders and agents outside the State, and

(b) of any other person, including those being investigated under section 58 of this Act, and including any person outside the State, who the inspector considers is, or may be, in possession of any information concerning the affairs of an approved stock exchange or authorised member firm, to produce to an inspector appointed under section 57 or 64 of this Act all books, accounts, deeds, records or other documents of, or relating to, the business of the approved stock exchange or authorised member firm or person being investigated under section 58 of this Act, which are in their control, possession or procurement, to attend before the inspector, when required to do so, and to give to him all assistance in connection with the investigation which they are reasonably able to give and it shall be the duty of such persons to comply with the requirement.

(2) The inspector may examine on oath or by written interrogatories on oath the officers, employees, shareholders and agents of the approved stock exchange or authorised member firm being investigated or other person being investigated under section 57 or 64 of this Act and any such person as is mentioned in subsection (1) of this section in relation to its affairs and may—

(a) administer an oath accordingly, and

(b) reduce the answers of such person to writing and require that person to sign them.

(3) If an inspector has reasonable grounds for believing that a director or past director or employee or past employee or agent or past agent or shareholder or past shareholder of the approved stock exchange or of the authorised member firm or of the other person mentioned in subsection (1) of this section whose affairs the inspector is investigating maintains or has maintained, either at that time or at any time in the past, an account of any description in a credit institution or an account with any other financial institution, including holdings of investment instruments, whether alone or jointly with another person and whether in the State or elsewhere, into or out of which there has been paid—

(a) any money which has resulted from or been used in the financing of any transaction, arrangement or agreement relating to the business of the approved stock exchange or authorised member firm or relating to client money or investment instruments, or

(b) any money which has been in any way connected with any act or omission, or series of acts or omissions, which on the part of that director or employee or agent constituted misconduct (whether fraudulent or not) towards the approved stock exchange or its shareholders or the authorised member firm or its shareholders or any client or creditor of the approved stock exchange or authorised member firm,the inspector may require the director or past director or employee or past employee or agent or past agent or shareholder or past shareholder or other person mentioned in subsection (1) of this section to produce to him all documents in the director's or employee's or agent's possession, or under his control, relating to that account and in this subsection “credit institution account” includes an account with any person exempt by virtue of section 7 (4) of the Central Bank Act, 1971, from the requirement of holding a licence granted under section 9 of that Act.

(4) If any officer, shareholder or agent of the approved stock exchange or authorised member firm or any such person as is mentioned in subsection (1) of this section refuses to produce to the inspector any book or document which it is his duty under this section to produce, refuses to attend before the inspector when required to do so, or refuses to answer any question put to him by the inspector with respect to the affairs of the approved stock exchange or authorised member firm or other person mentioned in subsection (1) of this section, as the case may be, the inspector may certify the refusal under his hand to the Court and the Court may thereupon inquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, shareholder or agent of the approved stock exchange or authorised member firm or associated undertaking or related undertaking or other such person as is mentioned in subsection (1) of this section and any statement which may be offered in defence, make any order or direction as it thinks fit including a direction to the person concerned to attend or re-attend before the inspector or produce particular books or documents or answer a particular question put to him by the inspector, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the inspector.

(5) In this section, any reference to officers or agents shall include past as well as present officers and agents, as the case may be, and “agents”, in relation to an approved stock exchange or authorised member firm or other person mentioned in subsection (1) of this section, shall include the bankers, accountants, solicitors, auditors and the financial and other advisors of the approved stock exchange or authorised member firm or other person mentioned in subsection (1) of this section, whether those persons are or are not officers of the approved stock exchange or authorised member firm or other body or undertaking.

61 Expenses of and fees relating to an investigation.

61.— (1) The expenses of and incidental to an investigation and the fees incurred by an inspector appointed by the Court under section 57 of this Act or by the Bank under section 64 of this Act shall be defrayed by the Bank but the Court may direct that any person dealt with in the report shall be liable, to such extent as the Court may direct, to repay the Bank any expenses or fees incurred.

(2) Without prejudice to subsection (1) of this section, any person who is—

(a) convicted on indictment of an offence on a prosecution instituted as a result of an investigation,

(b) ordered to pay damages or restore any property in proceedings brought as a result of an investigation, or

(c) awarded damages or to whom property is restored in proceedings brought as a result of an investigation,

may, in the same proceedings, be ordered to repay all or part of the expenses and fees referred to in subsection (1) of this section, and interest as appropriate, to the Bank or to any person on whom liability has been imposed by the Court under that subsection, provided that, in the case of a person to whom paragraph (c) of this subsection relates, the Court shall not order payment in excess of one-tenth of the amount of the damages awarded or of the value of the property restored and interest as appropriate as the case may be, and any such order shall not be executed until the person concerned has received his damages or the property has been restored, as the case may be.

(3) The report of an inspector may, if he thinks fit, and shall, if the Court so directs, include a recommendation as to the directions, if any, which he thinks appropriate, in the light of his investigation, to be given under subsection (1) of this section.

62 Inspectors' reports and proceedings thereon.

62.—(1) An inspector appointed under section 57 of this Act may, and shall if the Court so requires, make an interim report to the Court and, on conclusion of the investigation, shall make a final report to the Court but he may at any time in the course of the investigation, without making an interim report, inform the Court of matters coming to his knowledge as a result of the investigation tending to show that an offence has been committed.

(2) On a report being presented to it under this section, the Court shall—

(a) forward a copy of any such report to the Minister, the Minister for Enterprise and Employment, and the Bank,

(b) if it thinks fit, furnish a copy thereof to the approved stock exchange or authorised member firm concerned and its auditors, or, if the report concerns the affairs of an authorised member firm or an associated or related undertaking of an authorised member firm, furnish a copy thereof to the approved stock exchange of which the authorised member firm in question is a member, and

(c) if it thinks fit—

(i) furnish a copy thereof, on request and on payment of such fee as it may fix, to any other person who is a shareholder of the approved stock exchange or authorised member firm concerned or a shareholder of any other body dealt with in the report by virtue of section 57 of this Act or whose interests as a creditor or client of the approved stock exchange or authorised member firm concerned or of any other such body appear to the Court to be affected, and

(ii) cause any such report to be printed and published.

(3) Where the Court so thinks proper it may direct that a particular part of a report made by virtue of this section be omitted from a copy forwarded or furnished under subsection (2) (b) or (2) (c) (i) of this section or from the report as printed and published under subsection (2) (c) (ii).

(4) The Minister may lay a report forwarded under subsection (2) of this section before each House of the Oireachtas if he and the Minister for Enterprise and Employment think it proper to do so having due regard to the exigencies of the common good and the rights of any person referred to in that report and a report so laid shall be privileged.

63 Powers of Court following consideration of reports.

63.—(1) Having considered a report made under section 62 of this Act, the Court may make such order as it thinks fit in relation to matters arising from that report including—

(a) an order of its own motion for the winding-up of an approved stock exchange or for the winding-up or dissolution of an authorised member firm,

(b) an order for the purpose of remedying any disability suffered by any person whose interests were adversely affected by the conduct of the affairs of the approved stock exchange or authorised member firm provided that, in making any such order, the Court shall have regard to the interests of any other person who may be adversely affected by the order.

(2) If, in the case of any approved stock exchange or authorised member firm liable to be wound up or dissolved under this Act, it appears to the Bank from—

(a) any report made under section 62 of this Act as a result of an application by the Bank under section 57 of this Act, or

(b) any report made by inspectors appointed by the Bank under section 64 of this Act, or

(c) any information or document obtained by the Bank under this Act,

that a petition should be presented for the winding-up or dissolution of an approved stock exchange or authorised member firm, the Bank may, unless the approved stock exchange or authorised member firm is already being wound up or dissolved by the Court, present a petition for it to be so wound up or dissolved if the Court thinks it just and equitable for it to be so wound up or dissolved.

64 Appointment of an inspector by Bank.

64.—(1) Without prejudice to its powers under this Act, the Bank may, subject to subsection (2) of this section, appoint one or more inspectors to investigate and report on any or all of the following, namely—

(a) the affairs and conduct of the business of an approved stock exchange or an authorised member firm or other undertaking which is, or was at the relevant time, an associated or related undertaking of an approved stock exchange or an authorised member firm, or any particular aspect of such business,

(b) compliance of the approved stock exchange or authorised member firm with all or any of the following:

(i) conditions or requirements or both imposed by the Bank under this Act,

(ii) rules or codes of conduct set out or approved by the Bank under this Act,

(iii) rules of an approved stock exchange,

(iv) any requirement of this Act,

(v) rules or requirements approved or imposed by the Bank with respect to clients' money and investment instruments,

(vi) any other enactment, and

(c) any other matter as the Bank may consider appropriate.

(2) An appointment under subsection (1) of this section may be made by the Bank if it is of the opinion that there are circumstances suggesting that it is necessary—

(a) for the effective administration of the law relating to approved stock exchanges and their member firms, or

(b) for the effective discharge by the Bank of its statutory functions.

(3) The terms of appointment of an inspector under this section may define the scope of his investigation, whether as respects the matters or the period to which it is to extend or otherwise, and in particular may limit the investigation to matters connected with particular circumstances.

(4) Subject to the terms of appointment of an inspector, the powers conferred on him by this section shall extend to the investigation of any circumstances suggesting the existence of an arrangement or understanding which, though not legally binding, is or was observed or likely to be observed in practice and which is relevant to the purposes of his investigation.

(5) For the purposes of any investigation under this section, sections 58 to 62, except sections 59, 60 (3) and 61 (3), shall apply with the necessary modifications or references to the affairs of the approved stock exchange or authorised member firm or to those of any other person or any associated or related undertaking, so, however, that—

(a) the said sections shall apply in relation to all persons who are or have been officers or employees or agents of the approved stock exchange or authorised member firm or other person who appears to the inspector to have the information, document, material or explanation in his possession or under his control, and

(b) for references to the Court, except in sections 58, 60 (4), 61 (1) and 61 (2) of this Act, there shall be substituted references to the Bank.

65 Power to make determinations for breaches of conditions or requirements.

65.—(1) Without prejudice to any other powers of the Bank under this Act or any powers of an approved stock exchange, where it appears, on the basis of information provided by an authorised officer or an inspector appointed under section 64 of this Act, that there has been a breach by an approved stock exchange or a memberfirm of a condition or requirement imposed by the Bank under any or all of the sections to which this section applies, the Bank may—

(a) apply to the Court in a summary manner for a determination that there has been a breach of a condition or requirement, or

(b) notify the approved stock exchange or member firm.

(2) This section applies to the following sections, namely, sections 9 (2), 9 (9), 10 (2) (a), 11 (1), 18 (2), 18 (6), 18 (7), 18 (13) (b), 18 (14), 21 (2) (a), 21 (7), 22 (1), 26 (1), 26 (4), 31 (3), 31 (4), 33 (1), 38 (1), 43 (1) and 52 (1) of this Act.

(3) A notification under subsection (1) (b) of this section shall—

(a) set out reasons for the notification, and

(b) state that the Bank shall apply to the Court in a summary manner for a determination that there has been a breach of a condition or requirement under all or any of the sections to which this section applies, unless the approved stock exchange or member firm concerned requests, in writing within 7 days of the date of the notification, that the provisions of subsections (5) to (9) of this section shall apply.

(4) The Court, on hearing evidence in any proceedings under this section, may do all or any of the following—

(a) issue a reprimand to the approved stock exchange or member firm,

(b) direct that the approved stock exchange or member firm concerned shall pay to the Bank a specified sum, not to exceed £500,000, in respect of any breach of a condition or requirement,

(c) dismiss the application or make any other order as may be appropriate,

(d) make such order as to costs as it thinks fit.

(5) Where a request in writing has been made to it under subsection (3) of this section, the Bank may appoint a Committee to inquire into whether or not there has been a breach of a condition or requirement under a section referred to in subsection (2) of this section.

(6) A Committee appointed under subsection (5) of this section shall be appointed by the Bank from a panel established from time to time by the Minister, with the consent of the Minister for Enterprise and Employment, for that purpose and the provisions of the Second Schedule to this Act shall apply to the Committee and to the panel.

(7) Following an inquiry by a Committee appointed under subsection (5) of this section, that Committee may dismiss the application or may make a determination that there has been a breach of a condition or requirement and may do all or any of the following—

(a) issue a reprimand to an approved stock exchange or a member firm,

(b) direct that an approved stock exchange or member firm shall pay the Bank a specified sum, not to exceed £500,000, in respect of any breach of a condition or requirement,

(c) publish such details as it deems proper concerning a determination made under this subsection in the Iris Oifigiúil and in one or more newspapers circulating in the State,

(d) make such order as to costs as it thinks fit.

(8) An approved stock exchange or a member firm may appeal to the Court against a determination of the Committee issued under subsection (7) of this section.

(9) A sum due under this section may be recovered in any court of competent jurisdiction as a simple contract debt.

66 Search and seizure.

66.— (1) If a Judge of the District Court is satisfied on the sworn information of an authorised officer or an inspector appointed under section 64 of this Act that there are reasonable grounds for suspecting that there are on any premises any books or documents—

(a) of which production has been required under this Act, and

(b) which have not been produced in compliance with that requirement,

the Judge may issue a warrant authorising any member of the Garda Síochána, together with any other persons named in the warrant and any other members of the Garda Síochána, at any time or times within one month from the date of the warrant, on production if so requested of the warrant, to enter the premises specified in the information (using such force as is reasonably necessary for the purpose) and to search the premises or other place specified in the warrant and—

(i) take possession of any books or documents appearing to be such books or documents as aforesaid, or

(ii) to take, in relation to any books or documents so appearing, any other steps which may appear necessary for preserving them and preventing interference with them.

(2) Any books or documents of which possession is taken under this section may be retained for a period of three months or, if within that period there are commenced any such criminal proceedings as are mentioned in section 69 (1) (a) of this Act (being proceedings to which the books or documents are relevant), until the conclusion of those proceedings.

(3) A person who—

(a) obstructs or interferes with a member of the Garda Síochána acting under the authority of a warrant issued under this section, or

(b) is found on the premises or at the place specified in the warrant by a member of the Garda Síochána acting as aforesaid and who fails or refuses to give the member his name and address when required to do so or gives a name and address that is false or misleading, or

(c) who obstructs a member of the Garda Síochána in the lawful exercise of a power conferred on him to take possession of any books or documents,

shall be guilty of an offence.

67 Admissibility in evidence of reports of inspectors.

67.—A document purporting to be a copy of a report of an inspector appointed under the provisions of this Part shall be admissible in any civil proceedings as evidence—

(a) of the facts set out therein without further proof unless the contrary is shown, and

(b) of the opinion of the inspector in relation to any matter contained in the report.

68 Privilege.

68.—(1) Nothing in this Act shall compel the disclosure by any person of any information which he would, in the opinion of the Court, be entitled to refuse to produce on the grounds of legal professional privilege or authorise the taking possession of any document containing such information which is in his possession.

(2) The publication, in pursuance of any provision of this Part, of any report, information, book or document relating to inspectors appointed under this Part shall be privileged.

69 Consent to publication of information.

69.—(1) No information, book or document relating to a person which has been obtained under section 66 of this Act shall, without the previous consent in writing of that person, be published or disclosed, except to an appropriate authority, unless the publication or disclosure is required for all or any of the following, namely—

(a) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings pursuant to, or arising out of, any enactments under which the Bank exercises statutory functions or any criminal proceedings for an offence entailing misconduct in connection with the management of the affairs of a person or misapplication or wrongful retainer of its property;

(b) for the purpose of complying with any requirement, or exercising any power, imposed or conferred by this Act with respect to reports made by inspectors appointed thereunder by the Court or the Bank;

(c) with a view to the institution by the Bank of proceedings for the winding-up under this Act of the person or otherwise for the purposes of proceedings instituted by the Bank for that purpose;

(d) for the purposes of proceedings under section 66 of this Act.

(2) A person who publishes or discloses any information, book or document in contravention of this section shall be guilty of an offence.

(3) For the purposes of this section “appropriate authority” includes any or all of the following, namely—

(a) the Bank;

(b) a person authorised by the Governor of the Bank;

(c) an inspector appointed under this Act;

(d) a Committee appointed under section 65 of this Act;

(e) the Minister;

(f) the Minister for Enterprise and Employment;

(g) any court of competent jurisdiction;

(h) a competent authority for the purposes of Council Directives 93/22/EEC of 10 May, 1993(1), 93/6/EEC of 15 March, 1993[^(1)] or 77/780/EEC of 12 December, 1977[^(2)] as amended by Council Directive 89/646/EEC of 15 December, 1989[^(3)].

70 Offences and penalties.

70.—(1) A person who is guilty of an offence under section 8 (3), 9 (15), 14 (8), 15 (l)(b), 17 (1), 17 (2), 18 (16), 24 (9),27(l)(b),31 (1),31 (2), 31 (16), 35(1), 35(3), 36 (4), 37 (6), 47 (2), 52 (3), 52 (7), 54 (6), 66 (3), 69 (2), 70 (4), 70 (7) or 70 (8), shall be liable—

(a) on summary conviction to a fine not exceeding £1,000 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

(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 tile Bank.

(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 an approved stock exchange or member firm or body corporate or by a partnership and is proved to have been committed with the consent or connivance of, or to be attributable to, or to have been facilitated by any neglect on the part of any officer or employee of that approved stock exchange or member firm or person purporting to act on behalf of the approved stock exchange or member firm or body corporate or partnership, that officer or employee shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence:

Provided, however, that a person shall not be sentenced to imprisonment for such an offence unless in the opinion of the Court the offence was committed wilfully.

(5) (a) Where, on an application made in a summary manner by the Bank, the court is of the opinion that there has occurred or is occurring—

(i) a contravention of this Act,

(ii) a failure to comply with a condition or requirement imposed by the Bank in relation to an authorisation of a member firm or the approval of a stock exchange or with a direction issued by the Bank under section 29 of this Act,

the Court may, by order, prohibit the continuance of the contravention or failure by the person or persons concerned.

(b) The Court when considering the application may make such interim or interlocutory order as it considers appropriate.

(c) The foregoing provisions of this section are without prejudice to the statutory functions of the Bank.

(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) of this section is continued after conviction, he shall be guilty of a further offence on every day on which the contravention, breach or failure continues and for each such offence the person shall be liable on summary conviction to a fine not exceeding £1,000 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 thereunder, 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 recklessly provides an answer or explanation, knowingly withholds or omits information, makes a statement or produces, lodges or delivers any such document false in a material particular shall be guilty of an offence.

(8) (a) An officer of an approved stock exchange or member 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 approved stock exchange or member firm, or makes or is privy to the making of a false entry therein, shall, unless he proves that he had no intention to defeat the law, be guilty of an offence.

(b) Any such person as is mentioned in paragraph (a) of this subsection who fraudulently disposes of, alters or makes an omission in any such record or document, or who is privy to the fraudulent disposal of, altering or making ofan omission in any such record or document shall be guilty of an offence.

(9) Where there is a contravention of a provision 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 thereupon imposed.

(10) In any proceedings for an offence under a section of this Act applicable to partnerships it shall be a defence for a partner charged to prove—

(a) that the commission of the offence was due to a mistake or the reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and

(b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any other person under his 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.

FIRST SCHEDULE Supplementary Provisions in Relation to a Direction by the Bank Under section 29 of This Act