LegalizeCentral Bank and Financial Services Authority of Ireland Act 2004
This is the act as published. Later amendments are not folded into the text below: each one is a separate act in this repository and an entry in this law's history.
1 amending act · 2017-07-26, Financial Services and Pensions Ombudsman Act 2017
Act to amend the Central Bank Act 1942 for the purposes of providing for the establishment and functions of the regulatory authority sanctions panel, establishing the financial services ombudsman's bureau and prescribing the functions and powers of that ombudsman, providing for the establishment of consultative panels to advise the Irish Financial Services Regulatory Authority on certain matters; to amend the Central Bank Act 1997 for the purposes of making further provision for auditing the accounts of financial service providers and providing for the regulation of money transmission businesses; and to make miscellaneous amendments to certain other acts and statutory instruments relating to the provision of financial services
| Item | Provision affected | Amendment |
| 1. | Section 93 | Substitute the following subsections for subsections (13) to (19): |
| “(13) If, having considered any representations that may have been made under subsection (12), the Bank decides to refuse to grant a licence, it shall, by notice in writing, inform the applicant of the decision. The notice must specify the grounds for the decision. | ||
| (14) If, having considered any representations that may have been made under subsection (12), the Bank decides to suspend or revoke a moneylender's licence, or to vary any term or condition of such a licence, it shall notify the decision to the holder of the licence, together with the grounds for the decision. | ||
| (15) The Bank shall deliver a notice referred to in subsection (13) or (14) personally or send it by prepaid registered post to the business address of the applicant for an authorisation or the holder of the authorisation concerned, as the case requires. | ||
| (16) The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: | ||
| (a) a decision to refuse to grant a moneylender's licence; | ||
| (b) a decision suspending or revoking such a licence; | ||
| (c) a decision varying any term or condition of such a licence. | ||
| (17) If a notice under this section relates to a decision of the Bank— | ||
| (a) suspending or revoking a moneylender's licence, or | ||
| (b) varying the terms or conditions of such a licence, | ||
| the decision takes effect at the end of the period allowed for appealing against the decision under Part VIIA of the Central Bank Act 1942 unless an appeal against the decision is lodged under that Part within that period. | ||
| (18) If an appeal is lodged under Part VIIA of the Central Bank Act 1942 by a holder of a moneylender's licence against a decision of the Bank— | ||
| (a) suspending or revoking such a licence, or | ||
| (b) varying the terms or conditions of such a licence, | ||
| the decision does not take effect unless it is confirmed by the Irish Financial Services Appeals Tribunal or the appeal is withdrawn.”. | ||
| 2. | Section 116 | Substitute the following subsections for subsections (13) to (20): |
| “(13) If, having considered any representations that may have been made under subsection (12), the Bank decides to refuse to grant an authorisation, it shall, by notice in writing, inform the applicant of the decision. The notice must specify the grounds for the decision. | ||
| (14) If, having considered any representations that may have been made under subsection (12), the Bank decides to suspend or revoke an authorisation, or to vary any term or condition of an authorisation, it shall notify the decision to the holder of the authorisation, together with the grounds for the decision. | ||
| (15) The Bank shall deliver a notice referred to in subsection (13) or (14) personally or send it by prepaid registered post to the business address of the applicant for an authorisation or the holder of the authorisation concerned, as the case requires. | ||
| (16) The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: | ||
| (a) a decision to refuse to grant an authorisation; | ||
| (b) a decision suspending or revoking an authorisation; | ||
| (c) a decision varying any term or condition of an authorisation. | ||
| (17) If a notice under this section relates to a decision of the Bank— | ||
| (a) suspending or revoking an authorisation, or | ||
| (b) varying the terms or conditions of an authorisation, | ||
| the decision takes effect at the end of the period allowed for appealing against the decision under Part VIIA of the Central Bank Act 1942 unless an appeal against the decision is lodged under that Part within that period. | ||
| (18) If an appeal is lodged under Part VIIA of the Central Bank Act 1942 by a holder of an authorisation against a decision of the Bank— | ||
| (a) suspending or revoking an authorisation, or | ||
| (b) varying the terms or conditions of an authorisation, | ||
| the decision does not take effect unless it is confirmed by the Irish Financial Services Appeals Tribunal or the appeal is withdrawn. | ||
| (19) In this section, ‘authorisation’ means a mortgage intermediaries authorisation.”. | ||
PART 7 Amendment of Credit Union Act 1997
| Item | Provision inserted | Amendment | Amendment |
| 1. | Section 8 | Substitute the following subsections for subsections (3) and (4): | Substitute the following subsections for subsections (3) and (4): |
| “(3) If the Bank refuses to register as a credit union a society that has made an application for registration, it shall, by notice in writing, inform the society of the refusal. The notice must include a statement setting out the grounds for the refusal. | “(3) If the Bank refuses to register as a credit union a society that has made an application for registration, it shall, by notice in writing, inform the society of the refusal. The notice must include a statement setting out the grounds for the refusal. | ||
| (4) A decision of the Bank refusing to register a society as a credit union is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | (4) A decision of the Bank refusing to register a society as a credit union is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 2. | Section 11 | Substitute the following subsection for subsection (3): | Substitute the following subsection for subsection (3): |
| “(3) A decision of the Bank declining to give its approval under subsection (2)(b) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | “(3) A decision of the Bank declining to give its approval under subsection (2)(b) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 3. | Section 14 | Substitute the following subsections for subsection (5): | Substitute the following subsections for subsection (5): |
| “(5) If the Bank is not satisfied that an amendment of a credit union's rules sent to it under subsection (2) is not contrary to the provisions of this Act, it shall refuse to register the amendment, in which case it shall give the credit union a notice of its refusal to register the amendment. The notice must include a statement setting out the grounds for the refusal. | “(5) If the Bank is not satisfied that an amendment of a credit union's rules sent to it under subsection (2) is not contrary to the provisions of this Act, it shall refuse to register the amendment, in which case it shall give the credit union a notice of its refusal to register the amendment. The notice must include a statement setting out the grounds for the refusal. | ||
| (5A) A decision of the Bank refusing to register an amendment of a credit union's rules under subsection (5) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | (5A) A decision of the Bank refusing to register an amendment of a credit union's rules under subsection (5) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 4. | Section 52 | Substitute the following section for section 52: | Substitute the following section for section 52: |
| “Appeal against certain decisions of Bank. | 52.—The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: (a) a decision of the Bank under section 49(3)(b) to refuse to grant approval; | ||
| (b) a decision of the Bank under section 50(3)(a) to withdraw an approval granted under section 49; | |||
| (c) a decision of the Bank under section 50(3)(b) to vary any condition imposed on such an approval; | |||
| (d) a decision to impose any condition on such an approval (whether at the time the approval is granted or later by virtue of section 50 (3)(c)).”. | |||
| 5. | Section 96 | Substitute the following subsections for subsections (2) to (7): | Substitute the following subsections for subsections (2) to (7): |
| “(2) The removal or suspension from office by the Bank of a director or member of the Supervisory Committee of a credit union under subsection (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. | “(2) The removal or suspension from office by the Bank of a director or member of the Supervisory Committee of a credit union under subsection (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. | ||
| (3) If a director or member of the Supervisory Committee of a credit union is removed by the Bank under this section or if, on the hearing of an appeal against the removal, the removal is confirmed by the Irish Financial Services Appeals Tribunal under Part VIIA of the Central Bank Act 1942, the vacancy caused by the removal shall be treated as a casual vacancy. | (3) If a director or member of the Supervisory Committee of a credit union is removed by the Bank under this section or if, on the hearing of an appeal against the removal, the removal is confirmed by the Irish Financial Services Appeals Tribunal under Part VIIA of the Central Bank Act 1942, the vacancy caused by the removal shall be treated as a casual vacancy. | ||
| (4) A director or member of the Supervisory Committee of a credit union who is removed from office under this section is, for 5 years from the date when the removal takes effect, disqualified from holding office as an officer, auditor or voluntary assistant of a credit union. | (4) A director or member of the Supervisory Committee of a credit union who is removed from office under this section is, for 5 years from the date when the removal takes effect, disqualified from holding office as an officer, auditor or voluntary assistant of a credit union. | ||
| (5) If a director or member of the Supervisory Committee of a credit union is suspended under this section, the remaining directors or members of the Supervisory Committee constitute the board of directors or the Supervisory Committee. | (5) If a director or member of the Supervisory Committee of a credit union is suspended under this section, the remaining directors or members of the Supervisory Committee constitute the board of directors or the Supervisory Committee. | ||
| (6) No claim lies against the Bank, the Minister or the State for any loss of office arising directly or indirectly from any of the provisions of this section.”. | (6) No claim lies against the Bank, the Minister or the State for any loss of office arising directly or indirectly from any of the provisions of this section.”. | ||
| 6. | Section 97 | Substitute the following subsection for subsection (3): | Substitute the following subsection for subsection (3): |
| “(3) The Bank shall not cancel the registration of a credit union otherwise than— | “(3) The Bank shall not cancel the registration of a credit union otherwise than— | ||
| (a) at its own request, or | (a) at its own request, or | ||
| (b) under subsection (2), | (b) under subsection (2), | ||
| unless it has given the credit union at least 2 months' notice in writing specifying the ground on which it is proposed to cancel that registration.”. | unless it has given the credit union at least 2 months' notice in writing specifying the ground on which it is proposed to cancel that registration.”. | ||
| 7. | Section 99 | Substitute the following section for section 99: | Substitute the following section for section 99: |
| “Appeals against cancellation or suspension. | 99.—(1) The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: (a) a decision of the Bank under section 97(3) or section 98(3) proposing to cancel or suspend the registration of a credit union; | ||
| (b) a decision of the Bank under section 98(1)(b) renewing the suspension of the registration of a credit union so that the suspension extends beyond 3 months from when the suspension began. | |||
| (2) A decision cancelling the registration of a credit union does not take effect until— | |||
| (a) the end of the period within which an appeal against the decision may be lodged under Part VIIA of the Central Bank Act 1942, or | |||
| (b) if an appeal is lodged against the decision within that period— | |||
| (i) the confirmation of the decision by the Irish Financial Services Appeals Tribunal on the hearing of the appeal, or | |||
| (ii) the withdrawal of the appeal, | |||
| whichever first occurs.”. | |||
| 8. | Fourth Schedule | Substitute the following Schedule for the Fourth Schedule: | Substitute the following Schedule for the Fourth Schedule: |
| “FOURTH SCHEDULE Section 88. | “FOURTH SCHEDULE Section 88. | ||
| Supplementary Provisions in Relation to Regulatory Directions | Supplementary Provisions in Relation to Regulatory Directions | ||
| When a regulatory direction terminates. | 1. A regulatory direction terminates— | ||
| When a regulatory direction terminates. | (a) at the end of the period of operation specified in the direction, or | ||
| (b) if an appeal is lodged against the direction under Part VIIA of the Central Bank Act 1942 and the period is varied by the Irish Financial Services Appeals Tribunal on the hearing of the appeal, at the end of the period specified in the direction as so varied, or | |||
| (c) on the making by the Court of a winding-up order in respect of the credit union, | |||
| whichever first occurs. | |||
| Bank may require credit union to prepare scheme for the orderly termination of its business. | 2. (1) On forming the opinion that a credit union to which a regulatory direction was given is able to meet its obligations to its members and creditors but the circumstances that gave rise to the direction are unlikely to be rectified, the Bank may, by notice in writing given to the credit union, require the credit union— | ||
| (a) to prepare, in consultation with the Bank, a scheme for the orderly termination of its business and the discharge of its liabilities to its members and creditors under the supervision of the Bank; and | |||
| (b) to submit that scheme to the Bank for its approval. | |||
| (2) A credit union shall comply with a direction made to it under subparagraph (1) not later than 2 months after the requirement was notified to it under that subparagraph. | |||
| (3) A requirement made to a credit union under this paragraph is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. | |||
| Consequences of failing to comply with requirement made under paragraph 2. | 3. If a credit union fails to comply with a requirement made under paragraph 2 or fails to implement a scheme approved by the Bank, the Court may, on the application of the Bank, make an order for the winding-up of the credit union on the ground that it is just and equitable that it be wound up or such other order as it considers appropriate in the circumstances. | ||
| Court may revoke or amend order made under paragraph 3. | 4. The Court may by order revoke or amend an order made by it under paragraph 3. | ||
| What action may be taken when regulatory direction is in force. | 5. If a regulatory direction is in force in respect of a credit union, the following provisions apply: | ||
| What action may be taken when regulatory direction is in force. | (a) the credit union shall take all necessary steps to ensure that its assets, wherever held, are depleted only in accordance with the approval of the Bank; | ||
| (b) the Court may, on the application of the Bank, make an order directing a bank, or any institution exempt under section 7 of the Central Bank Act 1971, that holds an account of the credit union to suspend the making of payments from the account for such period as the Court may consider appropriate in the circumstances; | |||
| (c) the credit union shall make reasonable arrangements for using its funds to meet applications (duly made in accordance with its rules) by members for repayment of money subscribed or deposited by them; | |||
| (d) if it appears to the Bank that the credit union has been applying an undue proportion of its funds in making loans, in preference to making such arrangements as are referred to in paragraph (c), the Bank may, after giving notice to the credit union and giving it an opportunity of making representations, apply to the Court for the winding-up of the credit union.”. | |||
| 9. | Fifth Schedule | Repeal the Schedule. | Repeal the Schedule. |
PART 8 Amendment of Investor Compensation Act 1998
| Item | Provision affected | Amendment | Amendment |
| 1. | Section 25 | Substitute the following subsection for subsection (7): | Substitute the following subsection for subsection (7): |
| “(7) A refusal by the supervisory authority to approve a compensation scheme in accordance with this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | “(7) A refusal by the supervisory authority to approve a compensation scheme in accordance with this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 2. | Section 26 | Substitute the following section for section 26: | Substitute the following section for section 26: |
| “Revocation of approval of compensation scheme. | 26.—(1) The supervisory authority may, following consultation with the Company, revoke the approval of a compensation scheme if— (a) that authority considers that the operator of the compensation scheme is not complying or has not complied with conditions or requirements imposed by it under section 25, or | ||
| (b) conditions have materially changed since the granting of the approval such that, if an application for approval were made at the relevant time, a different decision would be taken in relation to the application for approval. | |||
| (2) A decision of the supervisory authority revoking the approval of a compensation scheme is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | |||
| 3. | Section 28 | Substitute the following section for section 28: | Substitute the following section for section 28: |
| “Direction under section 27 to be appealable. | 28.—(1) A direction given under section 27 is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. (2) On hearing an appeal against a direction given under section 27, the Irish Financial Services Appeals Tribunal may— | ||
| (a) hear evidence from creditors, and | |||
| (b) make such interim or interlocutory order, if any, as it thinks appropriate. | |||
| (3) While a direction made under section 27 is in force in relation to an investment firm, the following provisions apply: | |||
| (a) if the firm is a body corporate, winding-up proceedings may be commenced, and a resolution for winding-up may be passed, in relation to the firm only with the prior sanction of the Court; | |||
| (b) if the firm is an unincorporated body, proceedings for an order of dissolution may be commenced only with the prior sanction of the Court; | |||
| (c) if the firm is a sole trader, bankruptcy proceedings may be commenced only with the prior sanction of the Court; | |||
| (d) a receiver may be appointed over any of the assets of the firm, and those assets may be attached, sequestered or otherwise distrained only with the prior sanction of the Court. | |||
| (4) The Court may hear the whole or any part of proceedings under this section otherwise than in public. | |||
| (5) A creditor who is affected by a direction under section 27(3) may apply to the Court to vary or set aside that direction where it affects the interests of the creditor to a material degree. | |||
| (6) If an investment firm that is an authorised investment firm for the purposes of the Act of 1995 fails to comply with a direction given under section 27, the supervisory authority may revoke the authorisation of the investment firm in accordance with that Act. | |||
| (7) If an investment firm that is an authorised member firm for the purposes of the Stock Exchange Act 1995 fails to comply with a direction given under section 27, the supervisory authority may revoke the authorisation of the firm in accordance with that Act. | |||
| (8) If an investment firm that is a credit institution fails to comply with a direction given under section 27, the Bank shall amend the authorisation of the credit institution under Council Directive No. 77/780/EEC of 12 December 1977 and Council Directive No. 89/646/EEC of 15 December 1989 so that the authorisation of the credit institution no longer permits the provision of investment services listed in the Annex to the Investment Services Directive and shall so inform the credit institution immediately. | |||
| (9) If an investment firm that is an insurance intermediary fails to comply with a direction given under section 27, the supervisory authority shall inform the Company and the investment firm that the firm has failed to comply with its obligations under this Act. | |||
| (10) If an investment firm referred to in subsection (6), (7) or (8) is subject to the Investor Compensation Directive, the supervisory authority shall give not less than 12 months notice to the firm of its intention to take action against the investment firm under the relevant subsection.”. | |||
| 4. | Section 31 | Substitute the following subsections for subsections (2) and (3): | Substitute the following subsections for subsections (2) and (3): |
| “(2) A determination made by the supervisory authority in accordance with this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. | “(2) A determination made by the supervisory authority in accordance with this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. | ||
| (3) Such a determination does not take effect until— | (3) Such a determination does not take effect until— | ||
| (a) the end of the period within which an appeal against the determination may be lodged under Part VIIA of the Central Bank Act 1942, or | (a) the end of the period within which an appeal against the determination may be lodged under Part VIIA of the Central Bank Act 1942, or | ||
| (b) if an appeal is lodged against the determination within that period— | (b) if an appeal is lodged against the determination within that period— | ||
| (i) the confirmation of the determination by the Irish Financial Services Appeals Tribunal on the hearing of the appeal, or | (i) the confirmation of the determination by the Irish Financial Services Appeals Tribunal on the hearing of the appeal, or | ||
| (ii) the withdrawal of the appeal, | (ii) the withdrawal of the appeal, | ||
| whichever first occurs.”. | whichever first occurs.”. | ||
| 5. | Second Schedule | Substitute the following Schedule for the Second Schedule: | Substitute the following Schedule for the Second Schedule: |
| “SECOND SCHEDULE Section 28. | “SECOND SCHEDULE Section 28. | ||
| Supplementary Provision in Relation to a Direction by a Supervisory Authority under Section 27 | Supplementary Provision in Relation to a Direction by a Supervisory Authority under Section 27 | ||
| Interpretation: Second Schedule. | 1. In this Schedule— | ||
| Interpretation: Second Schedule. | ‘direction’ means a direction given under section 27; | ||
| Interpretation: Second Schedule. | ‘investment firm’ includes every director or other person who has responsibility for managing an investment firm. | ||
| When a direction is to terminate. | 2. A direction in force in relation to an investment firm terminates— (a) at the end of the period specified in the direction, or | ||
| (b) if on the hearing of an appeal against the direction the Irish Financial Services Appeals Tribunal varies that period, at the end of that period as varied, or | |||
| (c) if the firm is a body corporate and a winding-up order is made in respect of the firm, or | |||
| (d) if the firm is an unincorporated body and a dissolution order is made in respect of the firm, or | |||
| (e) if the firm is a sole trader and the firm is adjudicated bankrupt, on the adjudication, | |||
| whichever first occurs. | |||
| What happens when direction is in force. | 3. If a direction is in force in relation to an investment firm, the following provisions apply: | ||
| (a) the firm shall take all necessary steps to ensure that its assets or client or investor assets, wherever held, are only depleted in accordance with the prior approval of the supervisory authority; | |||
| (b) that authority may direct a credit institution or any institution exempt under section 7 of the Central Bank Act 1971, or any other financial institution that holds an account in respect of the firm (including holdings of investment instruments of the firm) to suspend the making of payments from, or otherwise dealing with, the account without the prior approval of that authority.”. | |||
PART 9 Amendment of Asset Covered Securities Act 2001
| Item | Provision affected | Amendment | Amendment |
| 1. | Section 26 | Substitute the following section for section 26: | Substitute the following section for section 26: |
| “Certain decisions of Authority to be appealable to the Irish Financial Services Appeals Tribunal. | 26.—The following decisions of the Authority are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: | ||
| “Certain decisions of Authority to be appealable to the Irish Financial Services Appeals Tribunal. | (a) the rejection of an application made under section 13; | ||
| “Certain decisions of Authority to be appealable to the Irish Financial Services Appeals Tribunal. | (b) the imposition of a condition when granting such an application; | ||
| (c) a variation of a condition of registration under section 16; | |||
| (d) the revocation of the registration of a designated credit institution under section 19; | |||
| (e) a direction given under section 20 or 21 in respect of a designated credit institution.”. | |||
SCHEDULE 2 Amendment of European Communities Regulations Consequential on Insertion of Part IIIC of Central Bank Act 1942
PART 1 Amendment of European Communities (Non-Life Insurance) Regulations 1976 (S.I. No. 115 of 1976)
| Item | Provision affected | Amendment |
| 1. | Article 12 | Substitute the following sub-articles for sub-articles (2) and (3): |
| “(2) A decision of the Bank refusing an application for an authorisation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. | ||
| (3) A failure of the Bank to deal with an application for an authorisation within 6 months after the date on which the Bank received the application is taken to be an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 2. | Article 23 | Substitute the following sub-article for sub-article (6): |
| “(6) A decision of the Bank to revoke an authorisation or to suspend the business of an undertaking is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
PART 2 Amendment of European Communities (Life Assurance) Regulations 1984 (S.I. No. 57 of 1984)
| Item | Provision affected | Amendment |
| 1. | Article 13 | Substitute the following sub-articles for sub-articles (2) and (3): |
| “(2) A decision of the Bank refusing an application for an authorisation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. | ||
| (3) A failure of the Bank to deal with an application for an authorisation within 6 months after the date on which the Bank received the application is taken to be an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 2. | Article 25 | Substitute the following sub-article for sub-article (6): |
| “(6) A decision of the Bank to revoke an authorisation or to suspend the business of an undertaking is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
PART 3 Amendment of European Communities (Non-Life Insurance) (Amendment) (No. 2) Regulations 1991 (S.I. No. 142 of 1991)
| Item | Provision affected | Amendment |
| 1. | Article 14 | Substitute the following paragraph for paragraph (d) of sub-article (3): |
| “(d) A decision of the Bank refusing an application by an undertaking for a certificate referred to in subparagraph (a) or (b) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 2. | Article 15 | Substitute the following sub-article for sub-article (7): |
| “(7) A decision of the Bank refusing an application for an authorisation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 3. | Article 17 | Substitute the following paragraph for paragraph (b) of sub-article (7): |
| “(b) A decision of the Bank adopting any measure specified in sub-articles (2) to (6) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
PART 4 Amendment of European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992)
| Item | Provision affected | Amendment | Amendment |
| 1. | Regulation 14 | Substitute the following paragraph for paragraph (12): | Substitute the following paragraph for paragraph (12): |
| “(12) A direction issued under paragraph (10) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | “(12) A direction issued under paragraph (10) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 2. | Regulation 18 | In paragraph (3), substitute “17A” for “17” wherever occurring. | In paragraph (3), substitute “17A” for “17” wherever occurring. |
| 3. | Regulation 22 | Substitute the following Regulation: | Substitute the following Regulation: |
| “Appeal against decision of Bank refusing to transmit certain information to be appealable. | 22. A decision of the Bank under Regulation 21 refusing to transmit the relevant information to the competent authority of the Member State concerned is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 4. | Regulation 27 | Substitute the following paragraph for paragraphs (5) to (9): | Substitute the following paragraph for paragraphs (5) to (9): |
| “(5) A direction issued to an institution under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | “(5) A direction issued to an institution under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 5. | Regulation 29 | (a) Substitute the following paragraph for paragraph (3): | (a) Substitute the following paragraph for paragraph (3): |
| “(3) A direction issued to an institution under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | “(3) A direction issued to an institution under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| (b) Substitute the following paragraph for paragraphs (5) and (6): | (b) Substitute the following paragraph for paragraphs (5) and (6): | ||
| “(5) If the Commission issues a direction, as provided for under paragraph 7 of Article 21 of the Directive, that the measures in question should be amended, suspended or terminated, the Bank shall comply with that direction without delay.”. | “(5) If the Commission issues a direction, as provided for under paragraph 7 of Article 21 of the Directive, that the measures in question should be amended, suspended or terminated, the Bank shall comply with that direction without delay.”. | ||
| 6. | Regulation 30 | Delete “or seeks an order of the Court under Regulation 27”. | Delete “or seeks an order of the Court under Regulation 27”. |
PART 5 Amendment of European Communities (Non-Life Insurance) Framework Regulations 1994 (S.I. No. 359 of 1994)
| Item | Provision affected | Amendment | Amendment |
| 1. | Article 5 | Repeal the Article. | Repeal the Article. |
| 2. | Article 16 | Substitute the following Article for Article 16: | Substitute the following Article for Article 16: |
| “Failure to comply with technical reserves requirements. | 16. (1) If an insurance undertaking whose head office is located in the State fails to comply with Article 13, the Bank may, after notifying the supervisory authorities of the Member States in which the risks underwritten by the undertaking exist, give the undertaking a direction in writing prohibiting the free disposal of the undertaking's assets. | ||
| (2) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the minimum amount required by Articles 3 and 4 of Part A of Annex II, the Bank shall give the undertaking a direction in writing requiring the undertaking to submit for the Bank's approval a plan for restoring the undertaking to a sound financial position. | |||
| (3) If, where sub-article (2) applies, it appears to the Bank that the financial position of an insurance undertaking is likely to deteriorate further, the Bank may give the undertaking a further direction in writing restricting or prohibiting the free disposal of the undertaking's assets. | |||
| (4) On giving such a direction, the Bank— | |||
| (a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and | |||
| (b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article. | |||
| (5) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the guarantee fund referred to in Part B of Annex II, the Bank— | |||
| (a) shall give to the undertaking a further direction in writing requiring the undertaking to submit for the Bank's approval a short-term finance scheme, and | |||
| (b) may include in the direction, or in another direction, a requirement restricting or prohibiting the undertaking from freely disposing of its assets. | |||
| (6) On giving a direction under subarticle (5), the Bank— | |||
| (a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and | |||
| (b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article. | |||
| (7) If the Bank has given a direction to an insurance undertaking in accordance with a provision of sub-articles (1) to (6), the Bank may give the undertaking such further directions as it thinks necessary to safeguard the interests of insured persons. | |||
| (8) If the supervisory authority of an insurance undertaking located in another Member State asks the Bank to take measures restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking located in the State, the Bank may give a direction in writing restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking that are located in the State. | |||
| (9) A direction or requirement given or imposed by the Bank under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | |||
| 3. | Article 18 | (a) Substitute the following paragraph for paragraph (c): | (a) Substitute the following paragraph for paragraph (c): |
| “(c) the Bank may give to the undertaking a direction in writing requiring the undertaking to take such further measures to safeguard the interests of persons insured by the insurance undertaking as are specified in the direction.”; | “(c) the Bank may give to the undertaking a direction in writing requiring the undertaking to take such further measures to safeguard the interests of persons insured by the insurance undertaking as are specified in the direction.”; | ||
| (b) Insert the following sub-article as sub-article (2) at the end of the Article: | (b) Insert the following sub-article as sub-article (2) at the end of the Article: | ||
| “(2) The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: | “(2) The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: | ||
| (a) a decision of the Bank revoking the authorisation of an insurance undertaking under Article 17; | (a) a decision of the Bank revoking the authorisation of an insurance undertaking under Article 17; | ||
| (b) a restriction or direction imposed or given by the Bank under sub-article (1).”. | (b) a restriction or direction imposed or given by the Bank under sub-article (1).”. | ||
| 4. | Article 20 | Substitute the following sub-articles for sub-articles (6) to (8): | Substitute the following sub-articles for sub-articles (6) to (8): |
| “(6) If the Bank reasonably believes that the control exercised by the person or persons referred to in sub-article (1) is likely to operate against the prudent and sound management of an insurance undertaking, it may, for the purposes of putting an end to that situation, give to the undertaking— | “(6) If the Bank reasonably believes that the control exercised by the person or persons referred to in sub-article (1) is likely to operate against the prudent and sound management of an insurance undertaking, it may, for the purposes of putting an end to that situation, give to the undertaking— | ||
| (a) a direction in writing suspending the voting rights attached to the shares held by the shareholders or members in question, or | (a) a direction in writing suspending the voting rights attached to the shares held by the shareholders or members in question, or | ||
| (b) such other direction as it thinks fit. | (b) such other direction as it thinks fit. | ||
| (7) The Bank may also give a similar direction to persons who fail to comply with the notification requirements referred to in sub-article (1). If a holding is acquired contrary to this Article, the Bank may give to the persons concerned a direction in writing suspending the corresponding voting rights or the nullity of votes cast. | (7) The Bank may also give a similar direction to persons who fail to comply with the notification requirements referred to in sub-article (1). If a holding is acquired contrary to this Article, the Bank may give to the persons concerned a direction in writing suspending the corresponding voting rights or the nullity of votes cast. | ||
| (8) A direction given by the Bank under this Article is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | (8) A direction given by the Bank under this Article is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 5. | Article 28 | Substitute the following sub-article for sub-article (8): | Substitute the following sub-article for sub-article (8): |
| “(8) A decision of the Bank refusing or failing to provide the relevant information is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | “(8) A decision of the Bank refusing or failing to provide the relevant information is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 6. | Article 46 | Repeal the Article. | Repeal the Article. |
PART 6 Amendment of European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994)
| Item | Provision affected | Amendment | Amendment |
| 1. | Article 5 | Repeal the Article. | Repeal the Article. |
| 2. | Article 36 | Substitute the following Article for Article 36: | Substitute the following Article for Article 36: |
| “Failure to comply with technical reserves requirements (including mathematical reserves). | 36. (1) If an insurance undertaking whose head office is located in the State fails to comply with Article 12, the Bank may, after notifying the supervisory authorities of the Member States in which the commitments underwritten by the undertaking exist, give the undertaking a direction in writing prohibiting it from freely disposing of its assets. | ||
| “Failure to comply with technical reserves requirements (including mathematical reserves). | (2) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the minimum amount required under sub-article 2 (ii) of Article 7, the Bank shall give the undertaking a direction in writing requiring the undertaking to submit to the Bank for its approval a plan for restoring the undertaking to a sound financial position. | ||
| (3) If, where sub-article (2) applies, it appears to the Bank that the financial position of the insurance undertaking will deteriorate further, the Bank may give the undertaking a further direction in writing restricting or prohibiting the undertaking from freely disposing of the undertaking's assets. | |||
| (4) On giving a direction under subarticle (3), the Bank— | |||
| (a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and | |||
| (b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article. | |||
| (5) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the guarantee fund referred to in Part B of Annex II, the Bank— | |||
| (a) shall give to the undertaking a further direction in writing requiring the undertaking to submit for the Bank's approval a short-term finance scheme, and | |||
| (b) may include in the direction, or in another direction, a requirement restricting or prohibiting the undertaking from freely disposing of its assets. | |||
| (6) On giving a direction under subarticle (5), the Bank— | |||
| (a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and | |||
| (b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article. | |||
| (7) If the Bank has given a direction to an insurance undertaking in accordance with a provision of sub-articles (1) to (6), the Bank may give the undertaking such further directions as it thinks necessary to safeguard the interests of insured persons. | |||
| (8) If the supervisory authority of an insurance undertaking located in another Member State asks the Bank to take measures restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking located in the State, the Bank may give a direction in writing restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking that are located in the State. | |||
| (9) A direction or requirement given or imposed by the Bank under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | |||
| 3. | Article 38 | Substitute the following Article for Article 38: | Substitute the following Article for Article 38: |
| “Provisions applying in the case of revocation. | 38. (1) On revoking an authorisation under Article 37, the Bank shall— | ||
| “Provisions applying in the case of revocation. | (a) inform the supervisory authorities of the other Member States in which the undertaking carries on business, and | ||
| (b) after consulting those authorities, give to the undertaking a direction in writing restricting the free disposal by the undertaking of its assets in accordance with Articles 36(1), 36(3) and 36(4). | |||
| (2) The Bank may impose such further measures as it considers necessary to safeguard the interests of persons insured by the insurance undertaking. | |||
| (3) The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: | |||
| (a) a decision revoking the authorisation of an insurance undertaking under Article 37; | |||
| (b) a direction or measure given or imposed under this Article.”. | |||
| 4. | Article 40 | Substitute the following sub-articles for sub-articles (6) to (8): | Substitute the following sub-articles for sub-articles (6) to (8): |
| “(6) If the Bank reasonably believes that the control exercised by the person or persons referred to in sub-article (1) is likely to operate against the prudent and sound management of an insurance undertaking, it may, for the purposes of putting an end to that situation, give to the undertaking— | “(6) If the Bank reasonably believes that the control exercised by the person or persons referred to in sub-article (1) is likely to operate against the prudent and sound management of an insurance undertaking, it may, for the purposes of putting an end to that situation, give to the undertaking— | ||
| (a) a direction in writing suspending the voting rights attached to the shares held by the shareholders or members in question, or | (a) a direction in writing suspending the voting rights attached to the shares held by the shareholders or members in question, or | ||
| (b) such other direction as it thinks fit. | (b) such other direction as it thinks fit. | ||
| (7) The Bank may also give a similar direction to persons who fail to comply with the notification requirements referred to in sub-article (1). If a holding is acquired contrary to this Article, the Bank may give to the persons concerned a direction in writing suspending the corresponding voting rights or the nullity of votes cast. | (7) The Bank may also give a similar direction to persons who fail to comply with the notification requirements referred to in sub-article (1). If a holding is acquired contrary to this Article, the Bank may give to the persons concerned a direction in writing suspending the corresponding voting rights or the nullity of votes cast. | ||
| (8) A direction given by the Bank under this Article is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | (8) A direction given by the Bank under this Article is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 5. | Article 46 | Substitute the following sub-article for sub-article (7): | Substitute the following sub-article for sub-article (7): |
| “(7) A decision of the Bank refusing or failing to provide relevant information is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | “(7) A decision of the Bank refusing or failing to provide relevant information is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 6. | Article 62 | Repeal the Article. | Repeal the Article. |
PART 7 Amendment of Supervision of Credit Institutions, Stock Exchange Member Firms and Investment Business Firms Regulations 1996 (S.I. No. 267 of 1996)
| Item | Provision affected | Amendment |
| 1. | Regulation 10 | Substitute the following Regulation: |
| “10. A decision of a supervisory authority under these regulations is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
PART 8 Amendment of European Communities (Electronic Money) Regulations 2002 (S.I. No. 221 of 2002)
| Item | Provision affected | Amendment | Amendment |
| 1. | Regulation 15 | Substitute the following paragraph for paragraphs (7) to (11): | Substitute the following paragraph for paragraphs (7) to (11): |
| “(7) A decision of the Bank refusing to transmit the relevant information to the competent authority of the Member State concerned is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | “(7) A decision of the Bank refusing to transmit the relevant information to the competent authority of the Member State concerned is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 2. | Regulation 28 | Substitute the following paragraphs for paragraphs (5) to (11): | Substitute the following paragraphs for paragraphs (5) to (11): |
| “(5) The Bank may at any time, by notice given in writing to the electronic money institution concerned, vary or revoke a direction given under Regulation 27(3). | “(5) The Bank may at any time, by notice given in writing to the electronic money institution concerned, vary or revoke a direction given under Regulation 27(3). | ||
| (6) The Bank may, by giving a further direction in writing, extend the period of operation of a direction given under Regulation 27(3), for such further period, not exceeding 12 months from the date the direction started to have effect, as the Bank considers appropriate. | (6) The Bank may, by giving a further direction in writing, extend the period of operation of a direction given under Regulation 27(3), for such further period, not exceeding 12 months from the date the direction started to have effect, as the Bank considers appropriate. | ||
| (7) A direction given under Regulation 27(3) ceases to have effect— | (7) A direction given under Regulation 27(3) ceases to have effect— | ||
| (a) at the end of the period specified in the direction or, if the period of its operation has been extended, at the end of that extended period, or | (a) at the end of the period specified in the direction or, if the period of its operation has been extended, at the end of that extended period, or | ||
| (b) on the making of a winding-up order in respect of the institution concerned, | (b) on the making of a winding-up order in respect of the institution concerned, | ||
| whichever first occurs. | whichever first occurs. | ||
| (8) If a direction under Regulation 27(3) is in force— | (8) If a direction under Regulation 27(3) is in force— | ||
| (a) winding-up or bankruptcy proceedings may be commenced in relation to the electronic money institution concerned, and | (a) winding-up or bankruptcy proceedings may be commenced in relation to the electronic money institution concerned, and | ||
| (b) a receiver over the property of that institution may be appointed, and | (b) a receiver over the property of that institution may be appointed, and | ||
| (c) the property of that institution may be attached, sequestered or otherwise distrained, | (c) the property of that institution may be attached, sequestered or otherwise distrained, | ||
| only with the prior approval of the Court. | only with the prior approval of the Court. | ||
| (9) If it appears to the Bank that an electronic money institution in respect of which the direction was given under Regulation 27(3) is able to meet its obligations to its creditors but the circumstances that gave rise to the direction are unlikely to be rectified, it may give the institution a further direction requiring the institution— | (9) If it appears to the Bank that an electronic money institution in respect of which the direction was given under Regulation 27(3) is able to meet its obligations to its creditors but the circumstances that gave rise to the direction are unlikely to be rectified, it may give the institution a further direction requiring the institution— | ||
| (a) to prepare, in consultation with the Bank, a scheme for the orderly termination of its business relating to issuing e-money, and the discharge of its liabilities in relation to its issued e-money, under the supervision of the Bank, and | (a) to prepare, in consultation with the Bank, a scheme for the orderly termination of its business relating to issuing e-money, and the discharge of its liabilities in relation to its issued e-money, under the supervision of the Bank, and | ||
| (b) to submit the scheme to the Bank for its approval within 2 months after preparing the scheme. | (b) to submit the scheme to the Bank for its approval within 2 months after preparing the scheme. | ||
| (10) If it appears to the Bank that an electronic money institution to which a direction has been given under paragraph (9)— | (10) If it appears to the Bank that an electronic money institution to which a direction has been given under paragraph (9)— | ||
| (a) has failed, or is failing, to comply with the direction, or | (a) has failed, or is failing, to comply with the direction, or | ||
| (b) has failed, or is failing, to comply with the terms of the scheme as approved by the Bank, | (b) has failed, or is failing, to comply with the terms of the scheme as approved by the Bank, | ||
| the Court may, on the application of the Bank, make such order as it considers appropriate, including— | the Court may, on the application of the Bank, make such order as it considers appropriate, including— | ||
| (i) an order of committal, or | (i) an order of committal, or | ||
| (ii) if the institution is a body corporate, a winding-up order on the grounds that it is just and equitable that the institution should be wound up, or | (ii) if the institution is a body corporate, a winding-up order on the grounds that it is just and equitable that the institution should be wound up, or | ||
| (iii) if the institution is a partnership, an order dissolving the partnership on the grounds that it is just and equitable that the institution should be dissolved. | (iii) if the institution is a partnership, an order dissolving the partnership on the grounds that it is just and equitable that the institution should be dissolved. | ||
| (11) A direction given by the Bank under Regulation 27(3) or under this Regulation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | (11) A direction given by the Bank under Regulation 27(3) or under this Regulation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 3. | Regulation 40 | Substitute the following paragraph for paragraphs (5) to (8): | Substitute the following paragraph for paragraphs (5) to (8): |
| “(5) A direction issued under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | “(5) A direction issued under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942.”. | ||
| 4. | Regulation 41 | Substitute the following Regulation: | Substitute the following Regulation: |
| “Direction by Bank to cease business. | 41. (1) This Regulation applies to an electronic money institution authorised in another Member State. | ||
| “Direction by Bank to cease business. | (2) If— | ||
| “Direction by Bank to cease business. | (a) the Bank considers that it is necessary, in the interests of the proper and orderly regulation of financial markets in the State, or | ||
| “Direction by Bank to cease business. | (b) the electronic institution concerned has had its authorisation withdrawn, revoked or suspended, in whole or in part, in accordance with the law of the relevant Member State, | ||
| the Bank may dispense with the requirements of Regulation 40 in relation to the notification of that institution. | |||
| (3) If the Bank dispenses with the requirements of Regulation 40 in relation to the notification of an electronic money institution, the competent authority of the other Member State and the Bank may direct that institution to take such measures as the Bank may specify, including a direction— | |||
| (a) that the institution cease to provide e-money services in the State, and | |||
| (b) where the institution has a branch in the State, that the business of the branch be wound up or dissolved by the Court in an orderly manner. | |||
| (4) A direction given by the Bank under paragraph (3) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942. | |||
| (5) As soon as practicable after taking measures under paragraph (3), the Bank shall inform the European Commission and the competent authority of the relevant Member State of those measures. | |||
| (6) The Bank shall comply with any direction given by the European Commission in accordance with paragraph 7 of Article 22 of the Codified Directive to amend, suspend or terminate measures that the Bank has directed an electronic money institution to take under paragraph (3).”. | |||
PART 9 Amendment of European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003 (S.I. No. 211 of 2003)
| Item | Provision affected | Amendment | Amendment |
| 1. | Regulation 14 | Substitute the following Regulation: | Substitute the following Regulation: |
| “Refusal of authorisation and right of appeal. | 14. (1) As soon as practicable after deciding to refuse an application for authorisation the Bank shall, by notice in writing, inform the company of its decision. A decision refusing the application must include a statement of the grounds on which it is based. | ||
| (2) If the application complies with Regulation 13, the Bank shall in any case comply with paragraph (1) within 6 months after the date on which the Bank received the application.”. | |||
| 2. | Regulation 104 | Substitute the following Regulation: | Substitute the following Regulation: |
| “Directions by the Bank. | 104. (1) If the Bank is of the opinion that— | ||
| “Directions by the Bank. | (a) it is in the public interest to do so, or | ||
| (b) it is in the interests of the orderly and proper regulation of UCITS, or | |||
| (c) any of the requirements for authorising a UCITS are no longer satisfied, or | |||
| (d) the management company, investment company or trustee of such a UCITS— | |||
| (i) has become or is likely to become unable to meet its obligations to its creditors, or | |||
| (ii) has contravened any provision of these Regulations, or has failed to comply with any condition or requirement imposed under these Regulations by the Bank, or in purported compliance with any such provision, has provided the Bank with information that it knows to be false, inaccurate or misleading, or | |||
| (iii) is not maintaining adequate capital resources having regard to the volume and nature of its business, or | |||
| (iv) no longer complies with the capital or other financial requirements imposed by the Bank from time to time, | |||
| the Bank may give a direction in writing to the management company, investment company or trustee requiring it to take such steps (including the winding-up of the UCITS or the suspension of the issue or redemption of units of the UCITS, or both) from a date specified in that direction until such further date as is specified in that direction, or in another direction, as the Bank considers necessary in the interests of the orderly and proper regulation of UCITS or for the protection of unit-holders or creditors of the UCITS. | |||
| (2) If a direction under paragraph (1) affects a particular UCITS, the UCITS shall immediately notify its unit-holders of the terms of the direction. | |||
| (3) The revocation of the authorisation of a UCITS does not affect the operation of a direction given under paragraph (1) that is then in force. A direction may be given under that paragraph in relation to a UCITS whose authorisation has been revoked so long as a direction under that paragraph was already in force at the time of revocation. | |||
| (4) For the purposes of paragraph (1), the Bank may take into account any matter relating to the UCITS, management company, investment company, trustee or any person employed by or associated with the management company, investment company or trustee in connection with the UCITS. | |||
| (5) The Bank may revoke a direction under paragraph (1) unless an order under paragraph (10) has been made in respect of that direction. | |||
| (6) A direction of the Bank given under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 at the instance of— | |||
| (a) a management company, investment company or trustee to which the direction relates, or | |||
| (b) any creditor who is affected by the direction. | |||
| (7) A direction given under paragraph (1) ceases to have effect— | |||
| (a) when the period specified in the direction expires, or | |||
| (b) if, on the hearing of an appeal against the direction by the Irish Financial Services Appeals Tribunal, the Tribunal confirms the direction but varies the period, when that period expires, or | |||
| (c) on the making of a winding-up order in respect of the UCITS, or with the sanction of the court, the dissolution of the UCITS, | |||
| whichever occurs first. | |||
| (8) If the Bank is of the opinion that, even if the management company, investment company or trustee concerned appears to be able to meet its obligations to its creditors, the circumstances giving rise to the direction are likely to continue to exist after the giving of direction, it may give a further direction in writing to the UCITS requiring it— | |||
| (a) to prepare, in consultation with the Bank, a scheme for the orderly termination of its business and the discharge of its liabilities, and | |||
| (b) to submit the scheme to the Bank for its approval within 3 months after its preparation. | |||
| (9) If a management company, investment company or trustee of a UCITS— | |||
| (a) has failed, or is failing, to comply with a direction given by the Bank under paragraph (8), or | |||
| (b) has failed, or is failing, to comply with a scheme approved by the Bank under that paragraph, | |||
| the court may, on the application of the Bank, make such order as it considers appropriate (including an order of committal or a winding-up order on the grounds that it is just and equitable that the management company, investment company or trustee be wound up). | |||
| (10) The court may, on application under paragraph (9) hear evidence from creditors, and the court may make such interim or interlocutory order, as it considers appropriate. | |||
| (11) While a direction under paragraph (1) is in force— | |||
| (a) the UCITS to which it relates may not be dissolved, and | |||
| (b) the court may, by order, restrain any disposal of the assets of the UCITS on the ground that such a disposal could have the effect of perpetrating a fraud on the UCITS, its creditors or unit-holders.”. | |||
| 3. | Regulation 105 | Substitute the following Regulation: | Substitute the following Regulation: |
| “Certain decisions of Bank to be appealable. | 105. The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: | ||
| “Certain decisions of Bank to be appealable. | (a) a decision refusing an application for authorisation under Regulation 14(1); | ||
| (b) a failure to decide an application within the period prescribed by Regulation 14(2); | |||
| (c) a decision revoking or refusing an application to revoke an authorisation; | |||
| (d) a decision replacing or proposing to replace a management company or trustee under Regulation 101.”. | |||
SCHEDULE 3 Miscellaneous Amendments to other Acts Administered by the Bank
PART 1 Amendment of Insurance Act 1936
| Item | Provision affected | Amendment |
| 1. | Section 3 | (a) Insert “(1)” before “In this Act”; |
| (b) Insert the following subsection at the end of the section: | ||
| “(2) A financial contract within the meaning of the Netting of Financial Contracts Act 1995 is not, and is taken never to have been, a contract of insurance for the purposes of— | ||
| (a) the Insurance Acts 1909-2002, or | ||
| (b) regulations in force under those Acts, or | ||
| (c) regulations relating to insurance that are in force under the European Communities Act 1972. | ||
| However, this subsection does not have effect if the financial contract provides for any benefit that may accrue to a party to the contract to be conditional on the occurrence of a loss or detriment to which the party is required to be exposed under the contract.”. | ||
| 2. | Section 51 (as amended by item 17 of Part 2 of Schedule 1 to the Central Bank and Financial Services Authority of Ireland Act 2003) | In subsection (2), substitute “may not pay or undertake” for “may pay, or undertake”. |
PART 2 Amendment of Companies Act 1963
| Item | Provision affected | Amendment |
| 1. | Section 103 | In subsection (1)(b), insert the following subparagraph after subparagraph (iii): |
| “(iiia) if the charge is a floating one, granted by a company to the Central Bank and Financial Services Authority of Ireland for the purposes either of providing or securing collateral, particulars of any provision of the charge that has the effect of prohibiting or restricting the company from issuing further securities that rank equally with that charge or modifying the ranking of that charge in relation to securities previously issued by the company;”. | ||
PART 3 Amendment of Insurance Act 1964
| Item | Provision affected | Amendment |
| 1. | Section 3 (as amended by section 31 of the Insurance Act 1989) | In subsection (1B), substitute “in respect of a risk” for “in the State in respect of a risk situated in the State”. |
| 2. | Section 6 (as amended by section 10 of the Insurance (No. 2) Act 1983 and by section 31 of the Insurance Act 1989) | In subsection (2)(d), substitute the following definition for the definition of “aggregate income”: “ ‘aggregate income’, in relation to an insurer in respect of any period, means the gross amount of premiums paid or payable to the insurer in respect of policies issued by the insurer during that period;”. |
PART 4 Amendment of Central Bank Act 1971
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