National Development Finance Agency Act 2002

1 Interpretation.

1.—(1) In this Act, except where the context otherwise requires—

“Agency” means the National Development Finance Agency established by section 2;

“appropriate Minister” means any Minister of the Government—

(a) on whom functions stand conferred, or

(b) who has general responsibility,

in respect of or in connection with a public private partnership or a State authority;

“Board” means the Board of the Agency;

“Chief Executive Officer” means the chief executive officer of the Agency;

“Committee of Public Accounts” means the Committee of Daíl Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General;

“company” means a company within the meaning of section 2 of the Companies Act, 1963;

“equity” means any financial interest resulting from the purchase of shares for a consideration;

“functions” includes powers and duties, and a reference to the performance of functions includes, with respect to powers and duties, a reference to the exercise of the powers and the carrying out of the duties;

“local authority” means a county council, city council or town council for the purposes of the Local Government Act, 2001;

“Minister” means the Minister for Finance;

“public investment projects” includes projects involving public private partnership arrangements;

“public private partnership arrangement” means a public private partnership arrangement within the meaning of the State Authorities (Public Private Partnership Arrangements) Act, 2002;

“refinancing” means changing the terms and conditions, obligations and entitlements attached to arrangements for financing public investment projects, including cancellation and replacement of such arrangements;

“State authority” means a body specified in the Schedule.

(2) (a) In this Act—

(i) a reference to a section or Schedule is a reference to a section of, or a Schedule to, this Act unless it is indicated that reference to some other enactment is intended, and

(ii) a reference to a subsection or paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

(b) In this Act a reference to any other enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended, extended or adapted by or under any subsequent enactment.

2 Establishment of Agency.

2.—(1) There shall stand established, on the establishment day, a body to be known as an Ghníomhaireacht Airgeadais d'Fhorbairt Náisiúnta, or in the English language, the National Development Finance Agency, and in this Act referred to as the “Agency”, to perform the functions assigned to it by this Act.

(2) The Minister shall by order appoint a day to be the establishment day for the purposes of this Act.

(3) The Agency shall be a body corporate with perpetual succession and have the power to sue and be sued in its corporate name and to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property.

3 Functions of Agency.

3.—(1) The functions of the Agency are—

(a) to advise any State authority of what, in the opinion of the Agency, are the optimal means of financing the cost of public investment projects in order to achieve value for money,

(b) to advance moneys (including repayable loans and equity) and to enter into other financial arrangements in respect of projects approved by any State authority,

(c) to provide advice to any State authority on all aspects of financing, refinancing and insurance of public investment projects to be duly undertaken by means of public private partnership arrangements or within the public sector, and

(d) to form, or cause to be formed, companies, subject to section 5, for the purpose of securing finance for public investment projects.

(2) The Agency shall have all such other powers as are necessary or expedient for the performance of its functions, including the engagement from time to time of consultants and advisers and other service providers.

(3) In carrying out its functions the Agency shall comply with all guidelines and instructions that the Minister may, from time to time, issue to the Agency.

4 Provision of advice to State authorities.

4.—(1) In providing advice under this Act the Agency shall have regard to—

(a) such policy directions as the Minister may issue for the purposes of this paragraph to State authorities from time to time in relation to the financing of public investment projects, and

(b) such policy guidance as the Minister may issue for the purposes of this paragraph to State authorities from time to time in relation to the process, procedures and regulation generally of public private partnership arrangements.

(2) The Minister shall cause a copy of every policy direction and policy guidance issued under subsection (1) to be sent to the Agency.

(3) The provision of advice by the Agency under this Act may include, where appropriate, advice as regards the engaging of consultancy services across the range of technical and other relevant expertise necessary to undertake such projects.

(4) In the discharge of functions under this Act the Agency and the National Treasury Management Agency shall at all times exercise due care, skill, prudence and diligence and act in the utmost good faith.

5 Establishment of special purpose companies.

5.—(a) Subject to paragraph (b) the Agency may form, or cause to be formed, a company or companies for the purpose of financing a public investment project where, in the opinion of the Agency, it is necessary or expedient to do so in order to discharge its functions under this Act.

(b) The Agency shall not form, or cause to be formed, such a company or companies unless it has obtained the prior consent of the Minister in writing in respect of each company.

6 Borrowings and other arrangements.

6.—(1) Subject to subsection (2) and to such guidelines as the Minister may from time to time issue, the Agency may from time to time raise money in any currency.

(2) The combined net aggregate of the principal of all moneys raised and outstanding by the Agency and any companies formed under section 5 shall not exceed €5,000,000,000 in total, including the equivalent of moneys raised in a currency other than the currency of the State.

(3) The Agency may engage in transactions (including transactions in a currency other than the currency of the State) of a normal banking nature with the Minister and any other persons for the purpose of performing any of its functions.

(4) The Agency may open and maintain bank accounts, including accounts in currencies other than the currency of the State.

7 Guarantee by Minister of borrowings.

7.—(1) The Minister may guarantee the due repayment by the Agency or any companies formed under section 5 of the principal of any moneys (including moneys in a currency other than the currency of the State) raised by the Agency or such companies, or the payment of interest on such moneys or both the repayment of the principal and the payment of the interest, and any such guarantee may include a guarantee of the payment by the Agency or such companies of commission and incidental expenses arising in connection with such moneys. The combined net aggregate of the principal of all moneys guaranteed by the Minister and outstanding (including the equivalent in the currency of the State of moneys raised in a currency other than the currency of the State) shall not exceed €5,000,000,000 in total.

(2) The Minister shall, as soon as may be after the expiration of every financial year, lay before each House of the Oireachtas a statement setting out with respect to each guarantee under this section given during that year or given at any time before, and in force at, the commencement of that year—

(a) particulars of the guarantee, including the remaining life of the guarantee,

(b) in case any payment has been made by the Minister under the guarantee before the end of that year, the amount of the payment and the amount (if any) repaid to the Minister on foot of the payment, and

(c) the amount of moneys covered by the guarantee which was outstanding at the end of that year.

(3) Moneys paid by the Minister under a guarantee under this section shall be repaid to the Minister, with interest on it at such rate or rates as he or she appoints, by the Agency or any company referred to in subsection (1), as the case may be, within 2 years from the date of the advance of the moneys out of the Central Fund.

(4) Where the whole or any part of moneys required by subsection (3) to be repaid to the Minister has not been paid in accordance with that subsection, the amount so remaining outstanding shall be repaid to the Central Fund out of moneys provided by the Oireachtas.

(5) Notwithstanding the provision under subsection (4) to repay the amount to the Central Fund, the Agency or any company referred to in subsection (1), as the case may be, shall remain liable to the Minister in respect of that amount, and that amount, with interest on it at such rate or rates as the Minister appoints, shall be repaid to him or her by the Agency or any company referred to in subsection (1), as the case may be, at such times and in such instalments as the Minister appoints and, in default of such repayment and without prejudice to any other method of recovery, shall be recoverable as a simple contract debt in any court of competent jurisdiction.

(6) Moneys paid by the Agency or any company referred to in subsection (1), as the case may be, under subsection (3) or (5) shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister thinks fit.

(7) In relation to guarantees given by the Minister under this section in respect of moneys in a currency other than the currency of the State—

(a) each of the references to principal, each of the references to interest and the reference to commission and incidental expenses in subsection (1) shall be taken as referring to the equivalent in the currency of the State of the actual principal, the actual interest and the actual commission and incidental expenses, respectively, such equivalent being calculated according to the cost in the currency of the State of the actual principal, the actual interest or the actual commission and incidental expenses, as may be appropriate, at the time the calculation is made,

(b) the reference to moneys in subsection (2) shall be taken as referring to the equivalent in the currency of the State of the actual moneys, such equivalent being calculated according to the rate of exchange for that currency and the currency of the State at the time the calculation is made, and

(c) each of the references to moneys in subsections (3) to (5) shall be taken as referring to the cost in the currency of the State of the actual moneys.

(8) Any payment by the Minister under this section shall be a charge on the Central Fund or the growing produce thereof.

8 Obligation of State authority.

8.—Subject to any guidelines that the Minister may from time to time issue for the purposes of this section and section 3(3) in respect of public investment projects, including—

(a) the type of project,

(b) the size of the project,

(c) the stage of development of the project, and

(d) any other relevant factors that will determine projects on which the Agency's advice will be sought,

a State authority shall seek the advice of the Agency as soon as is practicable before undertaking a public investment project.

9 Transfer of property of State authority.

9.—(1) Subject to subsections (2) and (3) a State authority may, whether or not for consideration, transfer, convey or assign its interest in any real or personal property (including leaseholds) owned or held by such State authority to a company formed under section 5 for the purpose of enabling such a company to carry out its financing functions in connection with public investment projects.

(2) A State authority shall not convey, assign or transfer any such property to any such company unless the consent of the Minister and the appropriate Minister has been obtained.

(3) A State authority may attach such terms and conditions as it considers appropriate to any transfer, conveyance or assignment pursuant to subsection (1).

10 Power of Minister and Agency to advance moneys.

10.—(1) The Minister may advance moneys from the Central Fund or the growing produce thereof to the Agency or a company formed under section 5 on such terms and conditions as he or she may determine.

(2) The Agency may advance moneys to a company formed under section 5 on such terms and conditions as it may determine.

(3) Moneys advanced under subsection (1) or (2) may include moneys for the purpose of making an equity investment in such a company.

(4) The aggregate of advances from the Central Fund under subsection (1) that are outstanding at any time shall not exceed €250,000,000.

11 Performance of functions of Agency.

11.—(1) (a) Subject to section 12, the Agency shall perform its functions through the National Treasury Management Agency.

(b) The National Treasury Management Agency Act, 1990, is amended by inserting the following section after section 4:

“4A.—The Agency shall have all powers necessary or expedient for the purposes of the National Development Finance Agency Act, 2002.”.

(2) Subject to section 20(5), the performance of a function by the National Treasury Management Agency under this Act shall not be considered a function of that Agency under the National Treasury Management Agency Act, 1990.

12 Board of Agency.

12.—(1) The Board of the Agency shall, subject to this Act—

(a) ensure that the functions of the Agency are being performed effectively,

(b) set the strategic objectives and targets to be met by the Agency, and

(c) ensure that the objectives and targets are met.

(2) The Board shall consist of a Chairperson and 4 ordinary members.

(3) The Chief Executive Officer of the National Treasury Management Agency shall be the Chairperson of the Board of the Agency.

(4) The ordinary members of the Board shall be appointed by the Minister.

(5) (a) Subject to subsection (9), the term of office of an ordinary member is 5 years.

(b) The members of the Board shall each be paid such remuneration and such allowances for expenses as the Minister determines at the time of the appointment of the ordinary member or Chairperson.

(c) Each ordinary member of the Board shall hold office on such terms (other than the term of office, payment of remuneration and allowances for expenses) as the Minister determines at the time of the member's appointment.

(6) A member of the Board shall be disqualified from becoming or continuing as a member of the Board if he or she—

(a) is adjudged a bankrupt,

(b) makes a composition or arrangement with creditors,

(c) is convicted of an indictable offence in relation to a corporate body, including an offence under the Companies Acts, 1963 to 2001,

(d) is convicted of an offence involving fraud or dishonesty, or

(e) is disqualified or restricted from being a director of any company.

(7) An ordinary member of the Board may at any time resign his or her membership by letter addressed to the Minister and the resignation shall take effect from the date specified in the letter or upon receipt of the letter by the Minister, whichever is the later.

(8) An ordinary member of the Board may at any time for stated reasons be removed from membership of the Board by the Minister if, in the Minister's opinion, the member has become incapable through ill-health of performing his or her functions, or has committed stated misbehaviour, or his or her removal appears to the Minister to be necessary for the effective performance by the Board of its functions.

(9) If an ordinary member of the Board dies, resigns, retires, becomes disqualified or is removed from office, the Minister may appoint a person to be a member to fill the casual vacancy so occasioned and the person so appointed shall be appointed in the same manner as, and for the remainder of the term of office of, the member of the Board who occasioned the casual vacancy.

(10) An ordinary member of the Board whose period of membership expires by the passage of time shall be eligible for re-appointment as a member of the Board, but shall not serve more than 2 terms.

(11) The Minister shall, in so far as is practicable and having regard to relevant experience, ensure an equitable balance between men and women in the composition of the Board.

13 Chief Executive Officer.

13.—(1) The Board shall appoint one of its members, other than its Chairperson, to be the Chief Executive Officer of the Agency.

(2) The Chief Executive Officer shall report and be accountable to the Board.

(3) The Chief Executive Officer shall carry out such duties as the Board assigns to him or her.

14 Meetings of Board.

14.—(1) The Board shall hold such and as many meetings as may be necessary for the performance of its functions.

(2) The first meeting of the Board shall be on the establishment day of the Agency or on the earliest practicable day after the establishment day.

(3) The quorum for a meeting of the Board shall be 3.

(4) At a meeting of the Board—

(a) the Chairperson of the Board shall, if present, be the chairperson of the meeting, and

(b) if and so long as the Chairperson of the Board is not present or if the office of the Chairperson is vacant, the members of the Board who are present shall choose one of their members to be chairperson of the meeting.

(5) At a meeting of the Board, each member present, including the Chairperson, shall have a vote and any question on which a vote is required in order to establish the Board's view on the matter shall be determined by a majority of votes of the Board members present and voting on the question and, in the case of an equal division of votes, the chairperson of the meeting shall have a second and casting vote.

(6) The Board may act notwithstanding one or more vacancies among its members or at the meeting, provided there is a quorum at the meeting.