Investment Funds, Companies and Miscellaneous Provisions Act 2005

the designated person or member of the public shall not be permitted by the Registrar to have access to, or to inspect, any information in the central register so far as such information relates to the minor concerned.

• (7) In subsection (1), "occasional transaction" has the same meaning as it has in section 18A(7).]

18S. F25[Obligations of competent authorities to report certain discrepancies to Registrar

18S. (1) If—

• (a) any of the following:

• (i) the Garda Síochána;

• (ii) the Revenue Commissioners;

• (iii) a competent authority;

• (iv) the Criminal Assets Bureau,

forms the opinion that there is a discrepancy between the information in the central register and the beneficial ownership information, as it relates to any common contractual fund, available to, as the case may be, the Garda Síochána, the Revenue Commissioners or other foregoing authority or bureau (each of which is referred to in this section as a "relevant person"), and

• (b) to the extent that the doing of the following does not interfere unnecessarily with the performance of the relevant person’s functions,

then the relevant person shall deliver, in a timely manner, to the Registrar, in such manner as the Registrar determines, notice of that opinion, specifying the particulars as respects which the foregoing discrepancy exists.

• (2) On receipt of a foregoing notice, the Registrar shall—

• (a) if the Registrar considers it appropriate to do so, make an entry in the relevant place in the central register which states that the notice has been received and specifies the particulars as respects which the foregoing discrepancy exists, and

• (b) serve a notice on the management company of the common contractual fund concerned which—

• (i) states that the foregoing notice has been received, and

• (ii) specifies the particulars as respects which the foregoing discrepancy exists, and requests the management company to deliver to the Registrar, within a period specified in the notice and in such manner as the Registrar determines—

• (I) a submission as to why the management company considers the opinion of the relevant person concerned not to be well founded, or

• (II) if the management company considers the opinion of the relevant person concerned to be well founded, such amended particulars (for entry in the central register) as are required where the management company is satisfied that the delivery of such is the appropriate means by which the discrepancy can be resolved,

and such a request shall be complied with by the management company accordingly.

• (3) None of the following—

• (a) an opinion stated in a notice delivered under subsection (1) by a relevant person to the Registrar (nor the specification in such a notice of the particulars as respects which the discrepancy concerned exists),

• (b) any act done by the Registrar, as mentioned in subsection (2), on foot of the receipt by the Registrar of a notice delivered under subsection (1) and, in particular, any entry made in the central register by the Registrar on foot of such receipt,

• (c) a submission delivered under subsection (2)(b)(ii)(I) to the Registrar by a management company,

shall, of itself, be regarded as constituting defamatory matter.

• (4) Subsections (2) to (7) of section 18N shall, with any necessary modifications, apply to amended particulars that are to be, or have been delivered, under subsection (2)(b)(ii)(II) as they apply to information that is to be, or has been, delivered under section 18M(1) or (2).]

18T. F26[Fees may be charged for access to central register

18T. (1) The Registrar may require any of the persons referred to in section 18R(1), (3) or (4) to pay to the Registrar a fee of such an amount as the Registrar may determine in respect of the access afforded to the central register under section 18R(1), (3) or (4).

• (2) The amount of a fee required to be paid under subsection (1) shall not exceed the administrative cost incurred in affording access to the information concerned.]

18U. F27[Offence for failure to comply with section 18M, 18N, 18O or 18P and supplemental provisions

18U. (1) A management company that fails to comply with section 18M, 18N or 18O shall be guilty of an offence.

• (2) A management company that fails, without reasonable excuse, to comply with a request, as referred to in subparagraph (ii) of subsection (4)(b) of section 18M, or subparagraph (ii) of subsection (2)(b) of section 18S, contained in a notice served on it under that subsection (4)(b) or (2)(b), as the case may be, shall be guilty of an offence.

• (3) A presenter that fails to comply with section 18O shall be guilty of an offence.

• (4) A person who, in purported compliance with section 18M, 18N, 18O or 18P, makes a statement that is false in a material particular, knowing it to be so false or being reckless as to whether it is so false, shall be guilty of an offence.

• (5) A designated person who fails to comply with section 18M(3) shall be guilty of an offence.]

19. Offences in relation to certain bodies.

19.—Where an offence under this Part is committed by a body corporate and is proved to have been so committed with the consent or approval of, or to have been facilitated by any wilful neglect on the part of any person being a director, manager, secretary, member of any committee of management or other controlling authority of such body or official of such body, that person shall also be guilty of an offence.

20. Offences under provisions of this Part.

20.—A person who contravenes any provision of this Part and for which contravention no offence is created by any other provision of this Part shall be guilty of an offence.

21. Penalties.

21.—(1) A person guilty of an offence under this Part shall be liable—

• (a) on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or

• (b) on conviction on indictment to a fine not exceeding €15,000 or imprisonment for a term not exceeding 5 years or both,

and, if the contravention in respect of which he or she is convicted of an offence under this Part is continued after the conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence the person shall be liable on summary conviction to a fine not exceeding €400 or, on conviction on indictment, to a fine not exceeding €1,900.

• (2) Subsection (1)(b) shall not apply to a person guilty of an offence under section 20.

• (3) Summary proceedings in relation to an offence under this Part may be brought and prosecuted by the Bank.

• (4) F28[…]

PART 3 Amendments to Part XIII of Act of 1990

22. Amendment of section 252 of Act of 1990.

22.—F29[…]

23. Amendment of section 254 of Act of 1990.

23.—F30[…]

24. Amendment of section 255 of Act of 1990.

24.—F31[…]

25. Segregated liability of sub-funds — insertion of new sections in Part XIII of Act of 1990.

25.—F32[…]

26. Amendment of section 257 of Act of 1990.

26.—F33[…]

27. Amendment of section 260 of Act of 1990.

27.—F34[…]

28. Insertion of new section 260A in Act of 1990.

28.—F35[…]

PART 4 Market Abuse

29. Interpretation (Part 4).

29.—F36[…]

30. Regulations (Part 4).

30.—F37[…]

31. Repeal of Part V of Act of 1990 and Companies (Amendment) Act 1999.

31.—F38[…]

32. Conviction on indictment of offences under Irish market abuse law: penalties.

32.—F39[…]

33. Civil liability for certain breaches of Irish market abuse law.

33.—F40[…]

34. Supplementary rules, etc., by competent authority.

34.—F41[…]

35. Amendment of section 33AJ of Central Bank Act 1942.

35.—F42[…]

36. Amendment of section 33AK of Central Bank Act 1942.

36.—F43[…]

37. Application of Irish market abuse law to certain markets.

37.—F44[…]

PART 5 Public Offers of Securities

38. Interpretation (Part 5).

38.—F45[…]

39. Construction of certain terms in Act of 1963.

39.—F46[…]

40. Repeal of certain provisions of Act of 1963 and revocation.

40.—F47[…]

41. Civil liability for misstatements in prospectus.

41.—F48[…]

42. Section 41: exceptions and exemptions.

42.—F49[…]

43. Restriction of liability where non-equity securities solely involved.

43.—F50[…]

44. Indemnification of certain persons.

44.—F51[…]

45. Expert's consent to issue of prospectus containing statement by him or her.

45.—F52[…]

46. Regulations (Part 5).

46.—F53[…]

47. Penalties on conviction on indictment and defences in respect of certain offences.

47.—F54[…]

48. Untrue statements and omissions in prospectus: criminal liability.

48.—F55[…]

49. Local offers.

49.—F56[…]

50. Exclusion of Investment Intermediaries Act 1995.

50.—F57[…]

51. Power to make certain rules and issue guidelines.

51.—F58[…]

52. Avoidance of certain agreements.

52.—F59[…]

53. Amendment of section 53 of Act of 1963.

53.—F60[…]

54. Amendment of section 55 of Act of 1963.

54.—F61[…]

55. Amendment of section 57 of Act of 1963.

55.—F62[…]

PART 6 Miscellaneous Company Law Amendments

56. Amendment of section 60 of Act of 1963.

56.—F63[…]

57. Electronic filing agents.

57.—F64[…]

58. Section 57: supplemental provisions.

58.—F65[…]

59. Reservation of company name.

59.—F66[…]

60. Section 59: supplemental provisions.

60.—F67[…]

61. Amendment of section 128 of Act of 1963.

61.—F68[…]

62. Amendment of section 195 of Act of 1963.

62.—F69[…]

63. Amendment of section 302(1) of Act of 1963.

63.—F70[…]

64. Amendment of section 371(1) of Act of 1963.

64.—F71[…]

65. Amendment of section 12B of Companies (Amendment) Act 1982.

65.—F72[…]

66. Amendment of section 22 of Companies (Amendment) Act 1986.

66.—F73[…]

67. Amendment of section 19 of Act of 1990.

67.—F74[…]

68. Amendment of section 20 of Act of 1990.

68.—F75[…]

69. Amendment of section 21 of Act of 1990.

69.—F76[…]

70. Amendment of section 166 of Act of 1990.

70.—F77[…]

71. Amendment of section 242 of Act of 1990.

71.—F78[…]

72. Replacement of references to Companies Registration Office Gazette for references to Iris Oifigiúil.

72.—F79[…]

73. Miscellaneous amendments of Companies Acts related to penalties.

73.—F80[…]

74. Amendment of section 110A of Company Law Enforcement Act 2001.

74.—F81[…]

PART 7 Miscellaneous Amendments

75. Amendment of Irish Takeover Panel Act 1997.

75.—The Irish Takeover Panel Act 1997 is amended—

• (a) in section 2—

• (i) in paragraph (ii), by substituting “Act of 1990,” for “Act of 1990.”, and

• (ii) by adding the following paragraph after paragraph (ii):

• “(iii) a public limited company or other body corporate incorporated in the State—

  • (I) the only securities of which for the time being are authorised (or during the period of 5 years referred to in paragraph (b) were authorised) to be traded by a recognised stock exchange on a market regulated by that exchange are those specified in section 2A,

  and

  • (II) which is not a company prescribed for the purposes of paragraph (c).”

and

• (b) by inserting the following section after section 2:

“Securities for the purposes of section 2(iii) and application of that provision.

2A.—(1) The securities referred to in paragraph (iii) of section 2 are debentures or bonds or other securities in the nature of debentures or bonds, by whatever name called, that do not confer voting rights in the company or body corporate referred to in that paragraph or in any other body corporate. (2) The cases to which paragraph (iii) of section 2 applies include the case where the authorisation for the trading of the securities concerned was given by the recognised stock exchange before the commencement of section 75 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005.”.

76. Amendment of section 45 of Competition Act 2002.

76.—(1) Subsection (6) of section 45 of the Competition Act 2002 is repealed.

• (2) Subsection (7) of that section 45 is amended by substituting “this section” for “subsection (6)”.

• (3) Notwithstanding the repeal by this section of subsection (6) of that section 45, that subsection (6) shall continue to apply to any books, documents or records seized or obtained under that section before the commencement of this section.

77. Amendment of UCITS Regulations.

77.—(1) The UCITS Regulations are amended in the manner provided for in the Schedule to this Act.

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

78. Amendment of section 26 of Prices Act 1958.

78.—The Prices Act 1958 (as amended by section 8 of the Prices (Amendment) Act 1972) is amended by substituting the following section for section 26:

“26.—(1) A person who commits or is deemed to have committed an offence under this Act shall be liable—

• (a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both, or

• (b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 2 years or both.

• (2) Where a person is convicted of an offence under this Act and there is a continuation of the offence by the person after his conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence shall be liable—

  • (a) on summary conviction, to a fine not exceeding €300 or imprisonment for a term not exceeding 6 months or both, or

  • (b) on conviction on indictment, to a fine not exceeding €500 or imprisonment for a term not exceeding 2 years or both.”.

79. Amendment of section 23 of Restrictive Practices Act 1972.

79.—The Restrictive Practices Act 1972 (as amended by section 21 of the Restrictive Practices (Amendment) Act 1987) is amended by substituting the following section for section 23:

“23.—(1) A person who is guilty of an offence under this Act for which no special penalty is provided shall be liable—

• (a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both, or

• (b) on conviction on indictment, to a fine not exceeding €60,000 or imprisonment for a term not exceeding 2 years or both.

• (2) Where a person is convicted of an offence under this Act and there is a continuation of the offence by the person after his or her conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence shall be liable—

  • (a) on summary conviction, to a fine not exceeding €300 for each day on which the offence is so continued or imprisonment for a term not exceeding 6 months or both, or

  • (b) on conviction on indictment, to a fine not exceeding €6,000 for each day on which the offence is so continued or imprisonment for a term not exceeding 2 years or both.

• (3) Where—

  • (a) a person is convicted of an offence under this Act by reason of the person's failure, neglect or refusal to comply with a provision of an order requiring him or her to perform a specified act within a specified period or before a specified date, and

  • (b) the specified act remains unperformed by the person after the specified period or date,

  the person shall be guilty of a further offence on every day on which the act continues to be unperformed after the specified period or date, and for each such offence shall be liable on summary conviction to a fine not exceeding €500 or imprisonment for a term not exceeding 6 months.”.

80. Amendment of section 17 of Consumer Information Act 1978.

80.—Section 17(1) of the Consumer Information Act 1978 is amended—

• (a) in paragraph (a) by substituting “€3,000” for “£500”, and

• (b) in paragraph (b) by substituting “€60,000” for “£10,000”.

81. Amendment of section 6 of Sale of Goods and Supply of Services Act 1980.

81.—Section 6(1) of the Sale of Goods and Supply of Services Act 1980 is amended—

• (a) in paragraph (a) by substituting “€3,000” for “£500”, and

• (b) in paragraph (b) by substituting “€60,000” for “£10,000”.

82. Amendment of section 13 of Consumer Credit Act 1995.

82.—The Consumer Credit Act 1995 is amended by substituting the following section for section 13:

“13.—(1) A person who is guilty of an offence under this Act shall be liable—

• (a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

• (b) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 5 years or both.

• (2) Where a person is convicted of an offence under this Act and there is a continuation of the offence by the person after his or her conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence shall be liable—

  • (a) on summary conviction, to a fine not exceeding €1,000, or

  • (b) on conviction on indictment, to a fine not exceeding €10,000.”.

83. Amendment of sections 6 and 7 of Package Holidays and Travel Trade Act 1995.

83.—The Package Holidays and Travel Trade Act 1995 is amended—

• (a) in section 6—

• (i) in subsection (1) by substituting “€3,000” for “£1,500”, and

• (ii) in subsection (2) by substituting “€3,000” for “£1,500” and “€100,000” for “£50,000”,

and

• (b) in section 7(3) by substituting “2 years” for “12 months”.

84. Amendment of section 31 of National Standards Authority of Ireland Act 1996.

84.—Section 31 of the National Standards Authority of Ireland Act 1996 is amended by substituting “€3,000” for “£1,500”.

85. Amendment of Industrial and Provident Societies Act 1893.

85.—The Industrial and Provident Societies Act 1893 is amended—

• (a) in section 4(a), by substituting “€150,000 or an amount equal to 1 per cent of the total assets of the society, whichever is the greater” for the amount standing specified in that section,

• (b) in section 25 (as substituted by section 5(1) of the Industrial and Provident Societies (Amendment) Act 1913)—

• (i) in subsection (1), by substituting “€15,000” for the amount standing specified in each place where that amount occurs in that subsection, and

• (ii) in subsection (3), by substituting “€15,000” for the amount standing specified in that subsection,

• (c) in section 26(1) (as substituted by section 5(2) of the Industrial and Provident Societies (Amendment) Act 1913), by substituting “the limit specified in section 4(a) of this Act” for the amount standing specified in that subsection,

• (d) in section 27(1), by substituting “€10,000” for the amount standing specified in that subsection, and

• (e) in Schedule II, in paragraph 5, by substituting “the limit specified in section 4(a) of this Act” for the amount standing specified in that paragraph.

86. Validation.

86.—(1) Notwithstanding the repeal of section 35(1)(i) of the Credit Union Act 1966 by the Credit Union Act 1997, the specified regulations made under that section continue, and shall be deemed always to have continued, to have full force and effect from the coming into operation of the specified regulations until the passing of this Act.

• (2) Nothing in this section shall affect any proceedings commenced in any court concerning the validity of the specified regulations where those proceedings were commenced before the passing of this Act.

• (3) In this section “specified regulations” means—

• (a) the Industrial and Provident Societies (Financial Limits) Regulations 1985 (S.I. No. 392 of 1985), and

• (b) the Industrial and Provident Societies (Financial Limits) (Amendment) Regulations 1990 (S.I. No. 246 of 1990).

87. Amendment of section 33AN of, and Schedule 2 to, Central Bank Act 1942.

87.—(1) Section 33AN of the Central Bank Act 1942 (inserted by the Central Bank and Financial Services Authority of Ireland Act 2004) is amended by inserting the following definitions after the definition of “contravene”:

“ ‘designated enactment’ does not include Part 4 or 5 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005;

‘designated statutory instrument’ does not include the Market Abuse (Directive 2003/6/EC) Regulations 2005 (S.I. No. - of 2005) or the Prospectus (Directive 2003/71/EC) Regulations 2005 (S.I. No. - of 2005);”.

• (2) Schedule 2 to the Central Bank Act 1942 (inserted by the Central Bank and Financial Services Authority of Ireland Act 2003) is amended—

• (a) in the item relating to the Postal and Telecommunications Services Act 1983, in column 3 of Part 1, by substituting “Sections 67 and 104” for “Section 104”,

• (b) in the item relating to the Dormant Accounts Act 2001, in column 3 of Part 1, by substituting “The whole Act” for “Part 3 and section 17”,

• (c) by inserting in Part 1 the following item after the item relating to the Assets Covered Securities Act 2001:

“

	No. 28 of 2001	Company Law Enforcement Act 2001	Section 110A
	No. 2 of 2003	Unclaimed Life Assurance Policies Act 2003	The whole Act
	No.- of 2005	Investment Funds, Companies and Miscellaneous Provisions Act 2005	The whole Act

”,

and

• (d) by inserting in Part 2 the following items after the item relating to the European Communities (Cross Border Payments in Euro) Regulations 2002 (S.I. No. 335 of 2002):

“

	S.I. No. 211 of 2003	European Communities (Undertakings for Collective Investments in Transferable Securities) Regulations 2003	The whole instrument
	S.I. No. 198 of 2004	European Communities (Reorganisation and Winding-Up of Credit Institutions) Regulations 2004	The whole instrument
	S.I. No. 727 of 2004	European Communities (Financial Conglomerates) Regulations 2004	The whole instrument
	S.I. No. 853 of 2004	European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004	The whole instrument
	S.I. No. 13 of 2005	European Communities (Insurance Mediation) Regulations 2005	The whole instrument
	S.I. No. - of 2005	Market Abuse (Directive 2003/6/EC) Regulations 2005	The whole instrument
	S.I. No. - of 2005	Prospectus (Directive 2003/71/EC) Regulations 2005	The whole instrument

”,

SCHEDULE Amendment of European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003 (S.I. No. 211 of 2003) as Amended

Section 77.

Amendment of Regulation 2(1)

• (a) by inserting the following before “transferable securities”:

“ ‘sub-fund’ means a separate portfolio of assets maintained by a UCITS in accordance with its trust deed, deed of constitution or articles;”, and

• (b) by substituting the following for the definition of “umbrella fund”:

“ ‘umbrella fund’ means a UCITS which is divided into a number of sub-funds, and each sub-fund shall be treated as a separate UCITS for the purposes of the application of Part VII of these Regulations;”.

Addition of new Regulation 32A

“Cross investment by sub-funds of an umbrella fund.

32A.—(1) A company to which this chapter applies and which is established as an umbrella fund may acquire by way of subscription or transfer for consideration shares in one sub-fund of the company for the account of another sub-fund of the company in accordance with Regulation 51. (2) Shares acquired under this Regulation may be held for the account of the sub-fund for which they were acquired and need not be cancelled.”.

Amendment of Regulation 35

“section 43 (treatment of shares held by or on behalf of a public limited company);

section 43A (accounting for own shares);”.

Addition of new Regulation 36F

“Application of segregated liability to investment companies established as UCITS.

36F.—The provisions of sections 256A to 256E of the Companies Act 1990 (inserted by section 25 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005) shall apply to any investment company authorised pursuant to these Regulations and for this purpose the references to umbrella fund and sub-fund shall be interpreted in accordance with the provisions of these Regulations, the references to authorisation shall be read as referring to authorisation pursuant to these Regulations and the reference to the commencement date shall be read as referring to the commencement date of section 25 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005.”.

Addition of new Regulation 51A

“UCITS umbrella funds.	51A.—An umbrella fund may acquire the units of one sub-fund for the account of another sub-fund within that umbrella, subject to the provisions of Regulation 51 and such conditions as may be imposed by the Bank.”.

Addition of new Regulation 79A

“79A.—(1) Notwithstanding section 148(2) of the Companies Act 1963 (inserted by the European Communities (International Financial Reporting Standards and Miscellaneous Amendments) Regulations 2005 (S.I. No. 116 of 2005)) an investment company to which chapter 1 or 2 of Part VI applies may, in respect of its individual accounts, opt to prepare those accounts in accordance with both of the following, namely—

• (a) an alternative body of accounting standards, and

• (b) section 149A of the Companies Act 1963,

as if the references in that section 149A to international financial reporting standards were references to that alternative body of accounting standards.

• (2) In the application of subsections (4), (5) and (6) of section 148 of the Companies Act 1963 to an investment company which has opted under paragraph (1) to prepare its accounts in accordance with an alternative body of accounting standards—

  • (a) the reference in that subsection (4) to international financial reporting standards shall be read as a reference to that alternative body of accounting standards, and

  • (b) there shall be substituted for ‘IFRS’, in each place where it occurs in those subsections (4), (5) and (6), ‘ABAS’ (which shall be read as referring to that alternative body of accounting standards).

• (3) For the purposes of this Regulation, accounts shall not be regarded as having been prepared in accordance with an alternative body of accounting standards unless the accounts concerned would, were they to have been prepared by a company or undertaking registered in the relevant jurisdiction, be regarded as having been prepared in accordance with those standards.

• (4) In this Regulation—

‘alternative body of accounting standards’ means standards that accounts of companies or undertakings must comply with that are laid down by such body or bodies having authority to lay down standards of that kind in—

- (*a*) United States of America,

- (*b*) Canada,

- (*c*) Japan, or

- (*d*) any other state or territory prescribed for the purposes of the section hereafter mentioned in this paragraph,

  as are prescribed under [the Companies Act 1990](http://www.irishstatutebook.ie/eli/1990/act/33/enacted/en/html) for the purposes of section 260A(4) (inserted by the *Investment Funds, Companies and Miscellaneous Provisions Act 2005*) of that Act;

  ‘relevant jurisdiction’ means the state or territory in which the alternative body of accounting standards concerned have effect.”.

Amendment of Regulation 85

• “(11) The requirements of this Regulation shall apply with appropriate modifications to auditors of a management company.”.

Footnotes