Investment Funds, Companies and Miscellaneous Provisions Act 2005

PART 1 Preliminary and General

1. Short title, collective citation and construction.

1.—(1) This Act may be cited as the Investment Funds, Companies and Miscellaneous Provisions Act 2005.

(2) Parts 3 to 6 and the Companies Acts 1963 to 2003 may be cited together as the Companies Acts 1963 to 2005 and shall be construed together as one.

2. Commencement.

2.—(1) This Act (other than sections 85 and 86) shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(2) Without prejudice to the generality of subsection (1), an order or orders under that subsection may appoint different days for the coming into operation of section 31 so as to effect the repeal provided by that section of an enactment specified in it on different days for different purposes.

3. Interpretation generally.

3.—(1) In this Act—

“Act of 1963” means the Companies Act 1963;

“Act of 1990” means the Companies Act 1990;

“contravention” includes, in relation to any provision, a failure to comply with that provision and “contravene” shall be construed accordingly;

“enactment” includes an instrument made under an enactment;

“Member State”, where used without qualification, means Member State of the European Union;

“Minister” means the Minister for Enterprise, Trade and Employment.

(2) In this Act—

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

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

(c) a reference to any other enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or adapted by or under any other enactment.

4. Orders and regulations.

4.—(1) Every order or regulation made under this Act (other than an order made under section 2 or 37) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

(2) The Minister may by order amend or revoke an order made under this Act (other than an order made under section 2 or 37 but including an order made under this subsection).

5. Expenses.

5.—F1[(1)] The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

F1[(2) The Bank shall not provide any funds from its own resources, other than from those resources provided to it undersubsection (3), to defray expenses of the Bank incurred by it in the performance of the functions undersections 18Oto18T(insubsections (3)and(4)referred to as ‘expenses of the Bank associated with its functions undersections 18Oto18T’).

(3) The Central Bank Commission shall make regulations under section 32D of the Central Bank Act 1942 prescribing levies (insubsection (4)referred to as the "dedicated levies") to be paid by common contractual funds, and the moneys received by the Bank by way of such levies shall be used by it to defray expenses of the Bank associated with its functions undersections 18Oto18T.

(4) Where—

(a) in any year, the Bank reasonably apprehends that it will be unable to defray all of the expenses of the Bank, arising in that year, associated with its functions undersections 18Oto18Tfrom moneys received by it by way of the dedicated levies, or

(b) notwithstanding the existence of the dedicated levies and, apart from the circumstance referred to inparagraph (a), for any reason there is an insufficiency in any year of moneys available to the Bank to defray all of its expenses, arising in that year, associated with the foregoing functions,

the Minister shall, on the written request of the Bank, advance to the Bank such sums as he or she thinks proper to enable the Bank to defray all of its expenses, arising in that year, associated with the foregoing functions.

(5) The payments of sums referred to insubsection (4)shall be made on such terms as to repayment, interest and other matters as may be determined by the Minister after consulting the Bank.

(6) All moneys from time to time required by the Minister to meet sums which may become payable by him or her undersubsection (4)shall be advanced out of the Central Fund or the growing produce thereof.]

PART 2 Common Contractual Funds

6. Interpretation (Part 2).

6.—(1) In this Part, unless the context otherwise requires—

F2["Act of 2010" means the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010;]

"Bank" means the F3[Central Bank of Ireland]

F2["beneficial owner", in relation to a common contractual fund, means any individual who—

(a) ultimately is entitled to or controls, whether the entitlement or control is direct or indirect, more than a 25 per cent share of the capital or profits of the common contractual fund or more than 25 per cent of the voting rights in the common contractual fund, or

(b) otherwise controls the common contractual fund;]

F2["beneficial ownership register" shall be construed in accordance withsection 21B;]

“common contractual fund” means a collective investment undertaking, being an unincorporated body established by a management company, under which the participants by contractual arrangement participate and share in the property of the collective investment undertaking as co-owners, provided—

(a) it is expressly stated in its deed of constitution to be established pursuant to this Act,

(b) it holds an authorisation issued in accordance with this Act, and

(c) it is not established pursuant to Council Directive No. 85/611/EEC of 20 December 1985^1, as amended from time to time.

F2["competent authority" means a competent authority as that expression, by virtue of sections 60 and 61 of the Act of 2010, is to be construed for the purposes of Part 4 of that Act;]

“debentures” means any debentures, debenture stock or bonds of any body corporate, incorporated in or outside the State, whether constituting a charge on the assets of the body or not;

“deed of constitution” or “deed” means the deed under which the common contractual fund is constituted, and references to the deed of constitution of a common contractual fund shall be construed accordingly;

F2["designated person" has the meaning assigned to it by section 25 of the Act of 2010;]

F2["Higher Executive Officer" means the position of Higher Executive Officer, or a position equivalent to it, in the public body concerned;]

“holding company” has the same meaning as in the Act of 1963;

F2["Member State", in addition to the meaning assigned to it bysection 3(1), includes, where relevant, a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 (as adjusted by the Protocol signed at Brussels on 17 March 1993);]

F2["PPS number", in relation to an individual, means the person’s Personal Public Service Number within the meaning ofsection 262of theSocial Welfare Consolidation Act 2005;]

F2["presenter" shall be construed in accordance withsection 18O(1);]

F2["Principal Officer" means the position of Principal Officer, or a position equivalent to it, in the public body concerned;]

F2["senior managing official" includes a director and a chief executive officer;]

“sub-fund” means a separate portfolio of assets maintained by a common contractual fund in accordance with its deed of constitution;

“subsidiary” has the same meaning as in the Act of 1963;

“UCITS Regulations” means the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003 (S.I. No. 211 of 2003) as amended;

“unit-holder” means the holder of one or more units of a common contractual fund and references to a unit-holder in such a common contractual fund shall be construed accordingly;

“units” means instruments granting an entitlement to share in the investments and relevant income of a common contractual fund;

“umbrella fund” means a common contractual fund which is divided into a number of sub-funds.

(2) Any reference in this Part to a management company of a common contractual fund or to a custodian of such a common contractual fund shall be construed as a reference to the person in whom are vested the powers of management relating to property of the fund for the time being or, as the case may be, to the person in whom such property is entrusted for safe-keeping.

(3) Any reference in this Part to an authorisation, in relation to a common contractual fund, standing revoked under this Act shall be construed as a reference to an authorisation standing revoked under Regulation 102 of the UCITS Regulations as applied by section 18.

(4) For the purposes of the application by section 18 of certain provisions of the UCITS Regulations to common contractual funds, the said provisions shall be construed as one with this Part.

7. Non-application of this Part to certain undertakings.

7.—(1) The provisions of this Part shall not apply to an undertaking for collective investment in transferable securities (within the meaning of the UCITS Regulations) that is authorised—

(a) under the UCITS Regulations, or

(b) by a competent authority in another Member State of the European Communities in accordance with Council Directive No. 85/611/EEC of 20 December 1985, as amended from time to time.

(2) A common contractual fund shall not be subject to the provisions respecting—

(a) a partnership under the Partnership Act 1890, the Limited Partnerships Act 1907 or the Investment Limited Partnerships Act 1994, or

(b) a unit trust scheme under the Unit Trusts Act 1990.

8. Authorisation of non-UCITS common contractual funds.

8.—(1) The Bank shall authorise a common contractual fund if, but only if—

F4[(a) either—

(i) the management company is authorised by the Bank under Part 2 of the European Union (Alternative Investment Fund Managers) Regulations 2013 or by the competent authority in its home Member State in accordance with Chapter II of Directive 2011/61/EC of the European Parliament and of the Council of 8 June 2011 or in its Member State of reference in accordance with that Chapter II, or

(ii) the Bank is satisfied that the competence of the management company in respect of matters of the kind with which it would be concerned in relation to a common contractual fund and its probity are such as to render it suitable to act as management company under the common contractual fund,

(b) save where it is authorised as mentioned in paragraph (a)(i), the management company of the common contractual fund is a body corporate that has its registered office and head office in the State, and has, in the opinion of the Bank, sufficient financial resources at its disposal to enable it to conduct its business effectively and meet its liabilities,

(c) the custodian of the common contractual fund is a depositary as specified in Regulation 22(3) of the European Union (Alternative Investment Fund Managers) Regulations 2013,

(d) the Bank is satisfied that the common contractual fund is organised such that the effective control over the affairs of the management company and of the custodian of the common contractual fund will be exercised independently of one another,]

(e) the Bank has approved the deed of constitution and the deed of constitution contains a covenant providing that the common contractual fund will be carried on in compliance with the provisions of this Act,

(f) a copy of the deed of constitution is deposited with the Bank, and

(g) the name of the common contractual fund is not, in the opinion of the Bank, undesirable.

(2) An application for authorisation of a common contractual fund shall be made in writing jointly by the proposed management company and custodian of the proposed common contractual fund and shall contain such information as the Bank may specify for the purpose of determining the application (including such additional information as the Bank may specify in the course of determining the application).

(3) The authorisation of a common contractual fund by the Bank shall not constitute a warranty by the Bank as to the performance of the common contractual fund and the Bank shall not be liable for the performance or default of the common contractual fund.

9. Public information and reporting on authorisation of common contractual funds.

9.—(1) The Bank shall establish and maintain a register of common contractual funds.

(2) The Bank shall ensure that the register is kept at a specified office of the Bank and is made available for inspection by members of the public during the ordinary business hours of that office.

(3) If the register is kept in a form that is not immediately legible, the Bank shall make available a version of it that is in legible form.

(4) A person who, during the ordinary business hours of the Bank, attends the office at which the Bank keeps the register is entitled—

(a) to inspect the register without charge, and

(b) on payment of a fee (if any) prescribed under section 33K (inserted by the Central Bank and Financial Services Authority of Ireland Act 2003) of the Central Bank Act 1942, for the purposes of this subsection, to obtain a copy of any entry in the register.

(5) The Bank shall, within 21 days after the date of the authorisation by it under section 8 of a common contractual fund, publish a notice to that effect in Iris Oifigiúil.

(6) The Bank shall publish from time to time, but not less frequently than once a year, in such manner as it thinks fit, the names of all common contractual funds which have been authorised by it under section 8 and whose authorisation has not been revoked under this Part.

(7) The Bank shall include in its annual report to the Minister for Finance a report on the performance of its functions under this Part.

(8) The Bank shall give to the Minister a copy of the report on the performance of its functions under this Part referred to in subsection (7).

10. Powers of Bank.

10.—(1) Notwithstanding any other powers which may be available to the Bank under any other enactment, the Bank may impose such conditions for the authorisation of a common contractual fund under section 8 as it considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of common contractual funds.

(2) The power to impose conditions referred to in subsection (1) shall include power to impose such conditions from time to time in respect of the manner in which the business of a common contractual fund authorised under section 8 shall be operated as the Bank considers appropriate and prudent for the purposes referred to in subsection (1).

(3) Conditions imposed under this section may be imposed generally or on a particular common contractual fund, or by reference to a particular class or classes of common contractual fund, or by reference to any other matter the Bank considers appropriate and prudent for the purposes referred to in subsection (1).

(4) Without prejudice to the generality of subsections (1), (2) and (3), conditions imposed by the Bank on a common contractual fund may make provision for any or all of the following matters—

(a) the prudential requirements of the investment policies of the common contractual fund,

(b) borrowing policies of the common contractual fund,

(c) prospectuses and other information disseminated in relation to the common contractual fund,

(d) the safe-keeping of the assets of the common contractual fund,

(e) such other supervisory and reporting requirements and conditions relating to its business as the Bank considers appropriate and prudent.

(5) The Bank may amend or revoke a condition imposed by it under this section.

(6) The management company and custodian of a common contractual fund shall comply with any conditions imposed by the Bank in relation to that common contractual fund.

11. Refusal of authorisation.

11.—(1) Where the Bank decides to refuse authorisation of a common contractual fund, it shall notify the management company and the custodian of the common contractual fund of its decision and of the reasons therefor.

(2) The management company may apply to the High Court for a review of the decision in accordance with Regulation 105 of the UCITS Regulations (as applied by section 18).

(3) The management company shall have the same right to apply to the High Court as in subsection (2) if a decision on authorisation under section 8 has not been taken by the Bank within 6 months of the submission of an application for authorisation which includes the information (other than any additional information sought by the Bank) specified by the Bank under section 8(2).

12. Alteration in deed of constitution of, or change in name of, common contractual fund.

12.—(1) No alteration in the deed of constitution of a common contractual fund or change in the name of such a common contractual fund shall be made without the approval of the Bank and—

(a) any person who makes such an alteration or change without such approval shall be guilty of an offence, and

(b) any such alteration made without the approval of the Bank is void.

(2) Within 21 days after the making of an alteration in the deed of constitution of a common contractual fund or a change in the name of a common contractual fund, the management company of the common contractual fund shall deposit with the Bank a copy of the deed of constitution as so altered or containing the alterations or (as the case may be) particulars of the change in name.