S.I. No. 277/2007 - Transparency (Directive 2004/109/EC) Regulations 2007

• (b) that issuer is an issuer in respect of which the State is the home Member State,

the Bank, subject to paragraph (2), may exempt that issuer from requirements under Regulations 25(3) to 28(2), provided that the law of the third country in question lays down equivalent requirements or such an issuer complies with requirements of the law of a third country that the Bank considers as equivalent.

• (2) A third country shall be deemed to set requirements equivalent to those set out in Articles 17(2) (a) and 18(2) (a) of the Directive, as far as the content of the information about meetings is concerned, where, under the law of that country, an issuer whose registered office is in that third country is required to provide at least information on the place, time and agenda of meetings.

• (3) Notwithstanding that the Bank has, under this Regulation, exempted an issuer from requirements referred to in paragraph (1), the issuer shall comply with the requirements of Articles 19, 20 and 21 of the Directive (as implemented in the State by this Part and Part 7) in respect of the information covered by the requirements laid down in the third country in question.

Filing of information with Bank.

31.

• (a) an issuer:

• (i) whose securities are admitted to trading on a regulated market; and

• (ii) whose home Member State is the State; and

• (b) a person who has requested, without the issuer’s consent, the admission of its securities to trading on a regulated market.

• (2) An issuer or person referred to in paragraph (1) that discloses regulated information shall, at the same time, file that information with the Bank.

Use of languages.

32.

• (2) Subject to paragraph (6), if securities are admitted to trading in more than one Member State including the State and the State is the home Member State regulated information shall be disclosed:

• (a) in a language accepted by the Bank; and

• (b) either in a language accepted by the competent authorities of each host Member State or in a language customary in the sphere of international finance, at the election of the issuer.

• (3)
• (a) Subject to paragraph (6), if securities are admitted to trading in one or more Member States excluding the State and the State is the home Member State, regulated information shall be disclosed either:

• (i) in a language accepted by the competent authorities of those host Member States; or

• (ii) in a language customary in the sphere of international finance,

at the election of the issuer.

• (b) In addition, where the State is the home Member State, regulated information shall be disclosed in a language accepted by the Bank or in another language customary in the sphere of international finance, at the election of the issuer.

• (4) Subject to paragraph (6), if securities are admitted to trading on a regulated market without the issuer’s consent:

• (a) paragraphs (1) to (3) shall not apply to the issuer; and

• (b) paragraphs (1) to (3) shall apply to the person who has requested such admission without the issuer’s consent.

• (5) Shareholders and a person referred to in Regulations 14, 15 and 17 shall be permitted to notify information to an issuer under these Regulations and transparency (regulated markets) law only in a language customary in the sphere of international finance. If an issuer receives such a notification, the Bank may not require the issuer to provide a translation into a language accepted by it.

• (6) If securities whose denomination per unit amounts to at least €50,000 (or an equivalent amount) are admitted to trading on a regulated market in the State or in one or more Member States, regulated information shall be disclosed to the public in either a language accepted by the competent authorities of the home Member State and host Member States or in a language customary in the sphere of international finance, at the election of the issuer or of the person who, without the issuer’s consent, has requested such admission.

• (7) If an action concerning the content of regulated information is brought before a court or tribunal in the State, responsibility for the payment of costs incurred in the translation of that information for the purposes of the proceedings shall be in accordance with the law of the State.

• (8) For the purposes of this Regulation “a language customary in the sphere of international finance” includes the English language.

PART 7 DISSEMINATION OF INFORMATION

33.

• (a) an issuer:

• (i) whose securities are admitted to trading on a regulated market; and

• (ii) whose home Member State is the State;

• (b) a person who has applied, without the issuer’s consent, for the admission of its securities to trading on a regulated market; and

• (c) securities that are admitted to trading only on a regulated market in the State which is the host Member State and not in the home Member State.

• (2) An issuer referred to in paragraph (1)(a), a person referred to in paragraph (1)(b) (“other person”) or an issuer of securities referred to in paragraph (1)(c) shall disclose regulated information in the manner specified in paragraphs (3) to (8).

• (3) When disseminating regulated information an issuer or other person shall ensure that the minimum standards specified in paragraphs (4) to (8) are complied with.

• (4) Regulated information shall be disseminated in a manner ensuring that it is capable of being disseminated to as wide a public as possible, and as close to simultaneously as possible in the home Member State, and in other Member States.

• (5)
• (a) Regulated information, other than regulated information referred to in subparagraph (b), shall be communicated to the media in unedited full text.

• (b) (i) An annual financial report that is required by Regulation 4 to be made public is not required to be communicated to the media in unedited full text except for the information referred to in clause (ii).

• (ii) If information is of a type that would be required to be disseminated in a half-yearly financial report then information of such a type that is contained in an annual financial report shall be communicated to the media in unedited full text.

• (c) The announcement relating to the publication of the following regulated information shall include an indication of the website on which the relevant documents are available:

• (i) an annual financial report that is required by Regulation 4 to be made public;

• (ii) a half-yearly financial report that is required by Regulation 6 to be made public; and

• (iii) an interim management statement that is required by Regulation 9 to be made public or an equivalent quarterly financial report.

• (6) Regulated information shall be communicated to the media in a manner which ensures the security of the communication, minimises the risk of data corruption and unauthorised access, and provides certainty as to the source of the regulated information. Security of receipt shall be ensured by remedying as soon as possible any failure or disruption in the communication of regulated information. An issuer or other person shall not be responsible for systemic errors or shortcomings in the media to which the regulated information has been communicated.

• (7) Regulated information shall be communicated to a RIS in a way which:

• (a) makes clear that the information is regulated information;

• (b) identifies clearly:

• (i) the issuer concerned;

• (ii) the subject matter of the regulated information; and

• (iii) the time and date of the communication of the regulated information by the issuer or other person.

• (8) Upon request, an issuer or other person shall be able to communicate to the Bank, in relation to any disclosure of regulated information:

• (a) the name of the person who communicated the regulated information to the RIS;

• (b) the security validation details;

• (c) the time and date on which the regulated information was communicated; and

• (d) the medium in which the regulated information was communicated; and

• (e) details of any embargo placed by the issuer on the regulated information, if applicable.

• (9) An issuer or other person shall not charge investors any specific cost for providing regulated information.

Disclosure of information in third country.

34.

• (2) In addition, paragraph (1) applies to information that is not regulated information.

Choice of home Member State and notifications by third country issuers.

35.

PART 8 COMPETENT AUTHORITIES

Designation of Competent Authorities.

36.

• (2) IAASA is designated as the competent authority for purposes of subparagraph (h) of Article 24(4) of the Directive and shall be responsible for carrying out the obligations provided for in that subparagraph and for ensuring that the provisions adopted pursuant to the Directive in respect thereof are applied.

• (3) The Bank and IAASA shall each be independent in the performance of its functions under these Regulations.

Delegation of functions.

37.

• (2) Any person to whom functions are delegated under paragraph (1) shall have, by virtue of the delegation, all such powers as are necessary to perform those functions.

• (3) Any delegation of functions shall be in writing and specify the functions to be performed and the conditions subject to which they are to be performed.

• (4) The conditions referred to in paragraph (3) shall include a provision obliging the stock exchange to whom a function or functions concerned are delegated to act and be organised in such a manner as to avoid conflicts of interest and so that information obtained from performing the function is not used unfairly or to prevent competition.

• (5) A delegation under this Regulation shall not prevent the performance by the Bank of the function delegated.

• (6) Notwithstanding any delegation under this Regulation, the final responsibility for supervising compliance with the applicable provisions of the Directive and of transparency (regulated markets) law shall be with the Bank.

• (7) The Bank shall notify the Minister of any such delegation of a function promptly and of the conditions subject to which it has been delegated.

• (8) Following such notification, the Minister shall inform the Commission and the competent authorities of other Member States designated pursuant to the Directive of any arrangements entered into with regard to the functions under this Regulation, including the conditions subject to which such functions are delegated.

• (9) Where a function is delegated pursuant to this Regulation, then nothing in the Stock Exchange Act 1995 (No. 9 of 1995) shall prevent there being specified as a condition subject to which the function is to be performed a condition requiring the rules of the stock exchange concerned or an amendment thereof to be approved by the Bank in so far as they are relevant to the function delegated.

PART 9 POWERS OF COMPETENT AUTHORITIES

Definitions.

38.

“authorised officer” means an authorised officer appointed under Regulation 53;

“person to whom these Regulations apply” means any relevant person or a market operator;

“records” means any book, document or any other written or printed material in any form including any information (including phone and data traffic records) stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form;

“relevant person” means an issuer or any other person (other than a market operator) on whom an obligation is imposed by these Regulations;

“relevant records” means records relating to the activities of persons to whom these Regulations apply;

“responsible authority” means:—

• (a) the Chief Executive of—

• (i) the Irish Financial Services Regulatory Authority or

• (ii) IAASA, or

• (b) any person to whom the Chief Executive of either of those Authorities has delegated responsibility for appointing authorised persons.

Powers of Bank.

39.

• (2) The powers provided for in this Part in respect of the Bank shall not be exercised in a manner or for a purpose inconsistent with the Directive or these Regulations.

Particular powers of Bank.

40.

• (a) the generality of Regulation 39, and

• (b) the subsequent provisions of this Regulation,

the Bank shall, in particular, have the power to:

• (i) require auditors, issuers, holders of shares or other financial instruments, or persons referred to in Regulation 14 or 17, and the persons that control them or are controlled by them, to provide information and documents to the Bank or delegate;

• (ii) require the issuer to disclose the information required under subparagraph (i) to the public by the means and within the time limits the Bank considers necessary;

• (iii) require managers of the issuers and of the holders of shares or other financial instruments, or of persons referred to in Regulation 14 or 17, to notify the information required under the Directive, or under transparency (regulated markets) law, and, if necessary, to provide further information and documents to the Bank or delegate;

• (iv) monitor that the issuer discloses timely information with the objective of ensuring effective and equal access to the public in all Member States where the securities are traded and take appropriate action if that is not the case;

• (v) make public the fact that an issuer, or a holder of shares or other financial instruments, or a person referred to in Regulation 14 or 17, is failing to comply with its or his or her obligations.

• (2) The Bank may publish the information referred to in paragraph (1)(ii) of its own initiative in the event that the issuer or the persons that control it or are controlled by it, fail to do so and after having heard the issuer.

• (3)
• (a) This paragraph applies where the State is the home Member State in respect of an issuer admitted to trading on a regulated market.

• (b) Where this paragraph applies, the Bank may (by means of rules under section 22 of the Act of 2006) make—

• (i) the issuer,

• (ii) the holder of shares, or

• (iii) a person referred to in Regulation 15 or 17(1),

subject to a requirement or requirements that is or are more stringent than a requirement or requirements specified in Part 2, 3, 5, 6 or 7.

• (c) In exercising the power under subparagraph (b), the Bank shall have regard to the interests of investors and to the public interest.

• (d) As soon as may be after it has exercised that power, the Bank shall notify, in writing, the Minister of the fact of its exercise and provide to the Minister such particulars in relation to that exercise as the Minister may request.

• (4) The Bank shall arrange for the putting in place of at least one official mechanism for the central storage of regulated information in accordance with Article 21 of the Directive.

• (5) The Bank shall have the following powers (by means of giving a direction under Regulation 56 in that behalf) for the purpose of regulating the disclosure of periodic and ongoing information about issuers whose securities are already admitted to trading on a regulated market and in respect of which the State is the home Member State:

• (a) suspend, or request the relevant regulated market to suspend, trading in securities for a maximum of 10 days at a time if it has reasonable grounds for suspecting that the provisions of the Directive or of transparency (regulated markets) law, have been infringed by the issuer;

• (b) prohibit trading on the relevant regulated market if it finds that the provisions of the Directive or of transparency(regulated markets) law have been infringed, or if it has reasonable grounds for suspecting that they would be infringed.

• (6) The disclosure to the Bank by an auditor of any information, document, fact or decision on foot of a requirement made by the Bank under paragraph (1)(i) shall not be regarded as constituting a breach of any restriction on disclosure of information imposed by contract or by any law, regulation or administrative provision and shall not involve the auditor in liability of any kind.

Other powers of Bank not prejudiced.

41.

Functions of IAASA.

42.

• (2) IAASA shall examine information drawn up pursuant to Regulations 4 to 8 by issuers whose home Member State is the State for the purpose of considering whether such information is in accordance with the relevant reporting framework.

• (3) The powers provided for in this Part in respect of IAASA shall not be exercised in a manner or for a purpose inconsistent with the Directive or transparency (regulated markets) law.

Particular powers of IAASA — supply of information.

43.

• (a) require any of the following persons to produce any document in his or her possession or control and to make copies of such documents, or to provide any information or explanations that it may reasonably require, for the purpose of examining and reviewing information published pursuant to Regulations 4 to 8:

• (i) an issuer;

• (ii) any director, manager, officer or employee of an issuer;

• (iii) any persons who control or are controlled by a person referred to in clause (i) or (ii);

• (iv) any person discharging managerial responsibilities of the issuer;

• (v) an auditor of an issuer;

• (vi) any person who fell within any of clauses (i) to (v) at a time when the document or information required by IAASA was prepared or came into existence; and

• (b) certify to the Court the refusal or failure of any person referred to in any of clauses (i) to (v) of subparagraph (a) to comply with a requirement made by IAASA pursuant to that subparagraph.

• (2) The disclosure to IAASA by an auditor of any information, document, fact or decision on foot of a requirement made by IAASA under paragraph (1)(a) shall not be regarded as constituting a breach of any restriction on disclosure of information imposed by contract or by any law, regulation or administrative provision and shall not involve the auditor in liability of any kind.

Further particular powers of IAASA — directions to issuers, etc.

44.

• (a) the matters in respect of which it appears to IAASA that the information fails to comply with the relevant reporting framework; and

• (b) a period of not less than 30 days within which the issuer shall either:

• (i) provide IAASA with a written explanation of the information; or

• (ii) prepare revised information;

• (c) that, in the absence of a written explanation under paragraph (b)(i) or the issuance of revised information under paragraph (b)(ii), IAASA may:

• (i) give a direction requiring the issuer to revise the information in accordance with instructions of IAASA specified in the direction;

• (ii) seek an order of confirmation from the Court of that direction issued by IAASA; and

• (iii) recover its costs from the issuer;

• (d) that, in the event that IAASA seeks an order of the Court to enforce its direction, IAASA may publish notice of such application in such manner as it thinks fit.

Provisions consequent on issuer’s response to notice under Regulation 44.

45.

• (2) If, at the end of the period specified in the notice under Regulation 44 in accordance with paragraph (b) thereof, or such longer period as IAASA may permit—

• (a) the issuer has not issued revised information; and

• (b) IAASA, having considered any explanations provided by the issuer or its directors or both and considered any information or documents or both provided by the issuer in response to requests from it, IAASA remains of the opinion that the information does not comply with the relevant reporting framework,

IAASA may give a direction to the issuer requiring the issuer or its directors or both to do one or more of the following:

• (i) revise the annual financial report or half-yearly financial report, as applicable, in accordance with instructions of IAASA specified in the direction;

• (ii) publish the revised information in the same manner as required by Regulations 4 to 8 and to make any consequential amendments to the annual or interim financial reports published in accordance with instructions of IAASA specified in the direction;

• (iii) publish notice of the direction given by IAASA under this paragraph in a format and containing such information as is specified by IAASA in the direction;

• (iv) pay costs specified in the direction, being costs incurred by IAASA in examining and reviewing the financial reports.

• (3) A direction under paragraph (2) shall—

• (a) be in writing,

and

• (b) specify the date from which it shall have effect and the period for which it shall have effect (which shall not exceed 12 months).

Application to Court to set aside or vary direction under Regulation 45.

46.

Enforcement of direction under Regulation 45.

47.

• (2) An application for an order under this Regulation shall be by motion, and the Court when considering the motion may make such interim or interlocutory order as it considers appropriate.

Applications under Regulations 46 and 47: supplemental provisions.

48.

• (2) The Court may direct the hearing together of applications made under Regulations 46 and 47 that relate to the same direction.

• (3) The Court may, if it thinks fit, vary or discharge an order made under Regulation 47.

• (4) An application under Regulation 46 or 47 may be heard otherwise than in public.

Particular powers of Court on application to it under Regulation 47.

49.

• (a) require the issuer or its directors or both to revise the financial report at issue so that it complies with the relevant reporting framework;

• (b) give directions respecting one or more of the following:

• (i) the auditing of the revised annual accounts;

• (ii) the revision of any matter contained in any annual financial report or half-yearly financial report as appropriate;

• (iii) the steps to be taken by the issuer or directors or both to bring the order of the Court to the notice of persons likely to rely on the information that was the subject of the declaration;

• (iv) such other matters as the Court sees fit;

• (c) require the issuer or directors or both to pay the costs incurred by IAASA in performing its functions under Regulations 44 to 46 in relation to such issuer.

• (2) For the purposes of making an order under paragraph (1), the Court may:

• (a) have regard to the extent to which any or all of the directors who approved the annual or half-yearly financial report that was the subject of the direction knew, or ought to have known, that it did not comply with the relevant reporting framework; and

• (b) exempt one or more directors from any order made under paragraph (1) or may order the payment of different amounts by different directors.

Dissemination of court order.

50.

• (a) a copy of the court order, or

• (b) notice that the application has failed or been withdrawn.

Provisions in relation to revised annual and half-yearly financial reports.

51.

• (2) Where revised annual financial reports or half-yearly financial reports are prepared under any of the Regulations referred to in paragraph (1), then, subject to a direction given under Regulation 45 or any order of the Court made on foot of an application to it under Regulation 47, any provision of these Regulations or the Companies Acts respecting the preparation, auditing, circulation and disclosure of annual accounts applies with the necessary changes to the revised annual financial report or half-yearly financial report, as applicable.

Supplemental provisions in relation to directions of IAASA.

52.

• (a) if an order of the Court made on foot of an application to it under Regulation 47 is for the time being in force in relation to the direction, or

• (b) to extend the period specified in the direction for which it is to have effect.

• (2) On the expiry of the period specified in a direction for which it is to have effect, IAASA may give another direction under these Regulations if it considers it necessary to do so, in like or different terms to the person concerned.

Power to appoint authorised officers.

53.

• (a) authorise such and so many persons as the authority considers necessary to be authorised officers for the purposes of these Regulations, and

• (b) revoke any such authorisation.

• (2) An appointment under paragraph (1)(a) may be for a specified or unspecified period.

• (3) Every authorised officer shall—

• (a) be furnished with a certificate of his or her appointment as an authorised officer, and

• (b) when exercising a power under these Regulations of an authorised officer, produce the certificate, together with some form of personal identification, if requested to do so by a person affected by the exercise of that power.

• (4) An appointment under paragraph (1) of a person as an authorised officer ceases—

• (a) when the responsible authority concerned revokes the appointment,

• (b) the person dies or resigns from the appointment,

• (c) if the appointment is for a specified period, when the period ends,

• (d) if the person appointed is an officer of the Bank or IAASA, when the person ceases to be such an officer, or

• (e) if the person appointed is an officer of an approved stock exchange to which the Bank has delegated functions under Regulation 37, when the person ceases to be such an officer.

Powers of authorised officers.

54.

• (a) at all reasonable times enter any premises at which there are reasonable grounds to believe that there are any relevant records,

• (b) search and inspect the premises referred to in subparagraph (a) and any relevant records on the premises,

• (c) secure for later inspection the premises or any part of the premises in which relevant records are kept or in which the officer has reasonable grounds for believing the relevant records are kept,

• (d) require any person to whom these Regulations apply to produce to the officer relevant records, and if the information is in a non-legible form, to reproduce it in a legible form or to give to the officer such information as the officer reasonably requires in relation to entries in the relevant records,

• (e) inspect and take copies of relevant records inspected or produced under this Regulation (including, in the case of information in a non-legible form, a copy of all or part of the information in a permanent legible form),

• (f) remove and retain any of the relevant records inspected or produced under this Regulation for such period as may be reasonable to facilitate further examination,

• (g) require a person to give to the officer information (including information by way of a written report) that the officer reasonably requires in relation to activities covered by these Regulations and to produce to the officer any relevant records that the person has or has access to,

• (h) require a person by whom or on whose behalf data equipment is or has been used, or any person who has charge of, or is otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to give the officer all reasonable assistance in relation thereto, and

• (i) require a person to explain entries in any relevant records.

• (2) An authorised officer shall not, except with the consent of the occupier, enter a private dwelling (other than a part of the dwelling used as a place of work) unless the officer has obtained a warrant from a judge of the District Court.

• (3) Where any person from whom production of a relevant record is required claims a lien thereon, the production of it shall be without prejudice to the lien.

• (4) The requirement to produce any relevant record or report or to provide information or assistance under this Regulation extends to—

• (a) a liquidator or receiver of, or any person who is or has been an officer or employee or agent of, a person to whom these Regulations apply, or

• (b) any other person who appears to the Bank or IAASA, as the case may be, or the authorised officer to have the relevant record or report in his or her possession or under his or her control or the ability to provide information or assistance, as the case may be.

• (5) An authorised officer may, if the officer considers it necessary, be accompanied by a member of the Garda Síochána or by another authorised officer when exercising a power under this Part.

• (6) A person shall not obstruct or interfere with an authorised officer in the exercise of his or her powers under this Regulation.

Warrants.

55.

• (a) is prevented from entering any premises, or

• (b) believes that there are relevant records in a private dwelling,

the authorised officer or the responsible authority by whom the authorised officer was appointed may apply to a judge of the District Court for a warrant under this Regulation authorising the entry by the authorised officer into the premises or the private dwelling, as the case may be.

• (2) If on an application under paragraph (1) a judge of the District Court is satisfied, on the information of the applicant, that the authorised officer concerned—

• (a) has been prevented from entering any premises, or

• (b) has reasonable grounds for believing that there are relevant records in a private dwelling,

then the judge may issue a warrant under the judge’s hand authorising the authorised officer, accompanied, if the judge considers it appropriate to so provide, by such number of members of the Garda Síochána as may be specified in the warrant, at any time within 4 weeks from the date of issue of the warrant, to enter, if need be by force, the premises or private dwelling and exercise any of the powers referred to in Regulation 54(1).

Directions by Bank.

56.

• (a) perform its functions under these Regulations or any other provision of transparency (regulated markets) law,

• (b) prevent any person from contravening or continuing to contravene a provision of these Regulations or any other provision of transparency (regulated markets) law, or

• (c) protect otherwise the interests of investors.

• (2) Each of the following is a direction referred to in paragraph (1), namely a direction to a person—

• (a) to do or not to do anything that the Bank may require to be done or not to be done in exercise of its powers under Regulation 40,

• (b) not to dispose of or otherwise dissipate any assets or specified assets of the person or not to do any of those things save where specified conditions are complied with,

• (c) not to dispose of or otherwise dissipate any assets or specified assets the beneficial interest in which is vested in another person or persons or not to do any of those things save where specified conditions are complied with,

• (d) being a credit institution, not to make any payments from an account held with the institution by a specified person or persons save with the prior consent of the Bank,

• (e) not to accept, process or execute any subscription or order on behalf of a specified person,

• (f) not to carry on a business (whether on the person’s behalf or another’s behalf) in a specified manner or otherwise than in a specified manner,

• (g) not to engage in any practice that contravenes a provision of these Regulations or any other provision of transparency (regulated markets) law,

• (h) not to enter into transactions of a specified kind or not to enter into such transactions save to a specified extent or save where specified conditions are complied with,

• (i) not to publish specified information,

• (j) to publish or disseminate in a specified manner specified information in relation to disclosure requirements arising under the Directive.

• (3) A direction under this Regulation shall—

• (a) be in writing,

and

• (b) specify the date from which it shall have effect and the period for which it shall have effect (which shall not exceed 12 months).

• (4) A person may apply to the Court for, and the Court may, if it considers it appropriate to do so, grant an order setting aside or varying a direction under this Regulation.

• (5) The Bank may, as respects a direction under this Regulation which, in its opinion has not been complied with or is unlikely to be complied with, (or, in the case of a direction referred to in paragraph (2)(b) or (c), irrespective of whether it is of that opinion) apply to the Court in a summary manner for such order as may be appropriate by way of enforcement of the direction and the Court may, as it thinks fit, on the hearing of the application, make or refuse to make an order providing for such relief.

• (6) An application for an order under paragraph (5) shall be by motion, and the Court when considering the motion may make such interim or interlocutory order as it considers appropriate.

• (7) An application under paragraph (4) may not be made if the direction concerned has been the subject of an order granted under paragraph (5) (but without prejudice to the right of a person, the subject of an order granted under paragraph (5), to apply subsequently to the Court to have the order varied or discharged).

• (8) The Court may direct the hearing together of applications made under paragraphs (4) and (5) that relate to the same direction.

• (9) The Court may, if it thinks fit, vary or discharge an order made under paragraph (5).

• (10) An application under paragraph (4) or (5) may be heard otherwise than in public.

• (11) The Bank may give a direction amending or revoking a direction given by it under this Regulation but this power may not be exercised—

• (a) if an order under paragraph (5) is for the time being in force in relation to the direction,

or

• (b) to extend the period specified in the direction for which it is to have effect.

• (12) On the expiry of the period specified in a direction for which it is to have effect, the Bank may give another direction under this Regulation (if it considers it necessary to do so on the grounds specified in paragraph (1)), in like or different terms, to the person concerned.

• (13) The powers of the Bank under this Regulation are in addition to those conferred on it by any other enactment to give directions or impose conditions or requirements.

Precautionary measures.

57.

Supplemental provision in relation to Regulation 57.

58.

• (2) The Bank or IAASA, as the case may be, shall inform the Commission of any measures taken by it under paragraph (1) at the earliest opportunity.

Privilege.

59.

PART 10 ADMINISTRATIVE SANCTIONS

Interpretation (Part 10).

60.

“adverse assessment” means an assessment in which the assessor has decided that the assessee is committing or has committed a prescribed contravention;

“assessee” means the person the subject of an assessment;

“assessment” means an assessment referred to in Regulation 61;

“assessor” means an assessor appointed under Regulation 61;

“prescribed contravention” means a contravention of—

• (a) these Regulations,

• (b) any obligation imposed by the Bank pursuant to a power exercised under these Regulations, or

• (c) any other provision of transparency (regulated markets) law;

“qualifying holding” means—

• (a) a direct or indirect holding of shares or other interest in a regulated financial service provider which represents 10% or more of the capital or the voting rights, or

• (b) a direct or indirect holding of shares or other interest in a regulated financial service provider which represents less than 10% of the capital or voting rights but which, in the opinion of the Bank, makes it possible to control or exercise a significant influence over the management of the regulated financial service provider;

“regulated financial service provider” has the same meaning as it has in section 2 (1) of the Central Bank Act 1942 (No. 22 of 1942) as amended by section 2 (g) of the Central Bank and Financial Services Authority of Ireland Act 2004 (No. 21 of 2004);

“sanction” means any sanction referred to in any of subparagraphs (a) to (f) of Regulation 67(1);

“specified sanctions”, in relation to an adverse assessment, means the sanction or sanctions referred to in Regulation 61(8) which may be imposed on the assessee.

• (2) The provisions of this Part are made for the purposes of enabling the imposition of administrative sanctions.

Bank may appoint assessor.

61.

• (a) the Bank, in the performance of the functions assigned to it as central competent administrative authority under Regulation 36(1), has reason to suspect that a prescribed contravention is being committed or has been committed, the Bank may appoint, or

• (b) IAASA, in the performance of the functions assigned to it as competent authority under Regulation 36(2), has reason to suspect that a prescribed contravention is being committed or has been committed and requests the Bank to do so, the Bank shall appoint,

an assessor (or, if the Bank thinks fit to do so, more than one assessor) to conduct an assessment as to—

• (i) whether or not the assessee is committing or has committed the contravention, and

• (ii) if the assessor finds that the assessee is committing or has committed the contravention, the sanction or sanctions, if any, which the assessor considers are appropriate to be imposed on the assessee in respect of the contravention.

• (2) The Bank may appoint an assessor who is not an officer, employee or official of the Bank and any such assessor so appointed is an agent of the Bank for the purpose of performing the functions of an assessor under this Part.

• (3) The Bank shall provide the assessor with such administrative services (including technical and legal advice) as the Bank considers necessary to enable the assessor to perform the assessor’s functions.

• (4) The assessor shall, as soon as is practicable after the assessor’s appointment as an assessor, give notice of the appointment to the assessee.

• (5) The notice under paragraph (4) given to the assessee by the assessor shall contain—

• (a) a statement that the assessor is appointed by the Bank under this Regulation and, if the appointment has been made at the request of IAASA, shall specify that to be the case,

• (b) a statement in summary form of the grounds for conducting the assessment,

• (c) a statement that, within a reasonable time specified by the assessor in the notice, the assessee may—

• (i) make submissions in writing to the assessor, and

• (ii) request the assessor to be permitted to make oral submissions about the matters to which the notice relates, and

• (d) a statement that the assessor shall conduct the assessment even if no submissions referred to in subparagraph (c) are made.

• (6) The assessor shall—

• (a) consider any submissions made by the assessee, and

• (b) conduct such investigations relating to the assessment as the assessor considers appropriate before issuing the assessment.

• (7) The assessor shall issue the assessment to the Bank when the assessment is made and, if the appointment of the assessor has been made at the request of IAASA, the Bank shall, on receipt of the assessment, immediately transmit it to IAASA.

• (8) Where the assessor decides that a prescribed contravention is being committed or has been committed, the assessor shall ensure that the assessment includes—

• (a) a statement of the grounds upon which the assessor made the assessment that the assessee is committing or has committed the contravention,

• (b) a statement in summary form of the evidence upon which the assessment is based, and

• (c) a statement of the sanction or sanctions, if any, which the assessor considers are appropriate to be imposed on the assessee in respect of the contravention.

• (9) The appointment of an assessor may be for a specified or unspecified period.

• (10) Subject to Regulation 68(2), the assessment shall constitute the decision of the Bank, and references in this Part to an adverse assessment shall be construed accordingly.

Revocation of appointment of assessor.

62.

• (b) Where IAASA is satisfied that the assessor has contravened paragraph (2) or is incapacitated, it may request the Bank to revoke the appointment of the assessor and the Bank, on the making of such a request, if it considers it appropriate to do so, shall revoke that appointment.

• (2) The assessor (including a person proposed to be appointed as an assessor) shall—

• (a) disclose to the Bank, and, where appropriate, to IAASA for its information, any material interest that the assessor may have in any matter that may arise during the assessment,

• (b) disclose to the Bank, and where appropriate, to IAASA for its information, any actual or potential conflict of interest that the assessor may have in conducting an assessment,

• (c) not use any inside information (within the meaning of the Market Abuse (Directive 2003/6/EC) Regulations 2005 ( S.I. No. 342 of 2005 )) obtained during an assessment for any purpose other than the performance of the assessor’s functions under this Part,

• (d) not engage in misconduct during the assessment,

• (e) perform the assessor’s functions in accordance with the provisions of this Part, and

• (f) issue an assessment that is not contrary to law.

Power to require witnesses to appear and give evidence.

63.

• (a) appear before the assessor to give evidence (including give evidence on oath),

• (b) produce documents specified in the notice which are in the person’s custody or control,

• (c) for the purposes of subparagraph (a) or (b), attend before the assessor from day to day unless excused from attendance or released from further attendance by the assessor.

• (2) The assessor may administer oaths for the purposes of the evidence referred to in paragraph (1)(a).

• (3) A witness at a hearing before the assessor has the same liabilities, privileges and immunities as a witness before the Court.

• (4) Where a person (“person concerned”)—

• (a) fails to comply with a notice under paragraph (1),

• (b) threatens or insults the assessor or any witness or person required to attend before the assessor,

• (c) interrupts the proceedings of, or does not behave in an appropriate manner before, the assessor,

• (d) obstructs or attempts to obstruct the assessor,

• (e) discloses, or authorises the disclosure of, evidence given before the assessor or any of the contents of a document produced to the assessor that the assessor has instructed not to be published, or

• (f) does anything else that, if the assessor were a court of law having power to commit for contempt, would be contempt for that court,

then

• (i) the assessor may apply to the Court for an order requiring the person concerned to do one or both of the following—

• (I) to comply with the notice under paragraph (1),

• (II) to discontinue or not repeat the behaviour falling within any of the provisions of subparagraphs (b) to (f), or behaviour of any similar kind, and

• (ii) the Court, if satisfied that there is no reasonable excuse for the failure to comply with the notice under paragraph (1) or for the behaviour concerned, as the case may be, grant the order and such other orders as it considers appropriate to ensure that the person concerned cooperates with the assessor.

Referral to Court on question of law.

64.

• (b) Without prejudice to paragraph (a), where the assessor has been appointed at the request of IAASA, the Bank may, at the request of IAASA, refer a question of law arising in the assessment to the Court for determination by the Court.

• (2) Where a question of law is referred under paragraph (1)—

• (a) the assessor shall send to the Court all documents before him or her that are relevant to the matter in question, and

• (b) at the end of the proceedings in the Court in relation to the reference, the Court shall cause the documents to be returned to the assessor.

Assessee to be issued copy of any adverse assessment, etc.

65.

• (a) issue the assessee with a copy of the adverse assessment (or, as the Bank thinks fit, so much of the adverse assessment as constitutes the statements referred to in Regulation 61(8)) and provide a copy of the assessment to IAASA where the assessor has been appointed by the Bank at the request of IAASA, and

• (b) advise the assessee that—

• (i) the assessee may appeal against the adverse assessment to the Court under Regulation 66, and

• (ii) the Bank may apply to the Court under Regulation 70 for an order confirming the adverse assessment (including the specified sanctions).

• (2) Where the assessment of the assessor is that the assessee is neither committing nor has committed a prescribed contravention, the Bank shall issue the assessee with a statement to that effect and, where the assessor has been appointed by the Bank at the request of IAASA, shall inform IAASA accordingly.

Right of appeal against adverse assessment (including specified sanctions).

66.

• (2) An appeal under paragraph (1) may be heard otherwise than in public.

• (3) The Court may, pending the hearing and determination of an appeal under paragraph (1), make such interim or interlocutory orders as the Court considers necessary in the circumstances.

• (4) The Court shall determine an appeal under paragraph (1) by making—

• (a) an order confirming, varying or setting aside the adverse assessment (including the specified sanctions), whether in whole or in part, or

• (b) an order remitting the case to be decided again by the Bank in accordance with the directions of the Court.

• (5) The determination of the Court on the hearing of an appeal under paragraph (1) shall be final, except that a party to the appeal may apply to the Supreme Court to review the determination on a question of law.

• (6) For the avoidance of doubt, it is declared that no variation of an adverse assessment under paragraph (4)(a) may provide for the imposition of a sanction on the assessee which is not a sanction referred to in subparagraphs (a) to (f) of Regulation 67(1).

Sanctions that may be imposed by Bank.

67.

• (a) a private caution or reprimand,

• (b) a public caution or reprimand,

• (c) subject to Regulation 72(2), a direction to pay to the Bank, or, if the assessor has been appointed by the Bank at the request of IAASA, to IAASA, a monetary penalty (but not exceeding €2,500,000 in any case),

• (d) a direction disqualifying the assessee from being concerned in the management of, or having a qualifying holding in, any regulated financial service provider for such time as is specified in the order,

• (e) if the assessee is continuing to commit a prescribed contravention, a direction ordering the assessee to cease committing the prescribed contravention,

• (f) a direction to pay to the Bank all or a specified part of the costs incurred by the Bank in investigating the matter to which the assessment relates and in holding the assessment (including any costs incurred by authorised officers).

• (2) Where the assessor had been appointed by the Bank at the request of IAASA, the Bank shall consult with IAASA before exercising the powers under paragraph (1).

Power to correct assessments.

68.

• (2) Where the text of an assessment is altered under paragraph (1), the text as so altered shall be taken to be the decision of the Bank under Regulation 61(10).

• (3) In paragraph (1), “obvious error”, in relation to the text of an assessment, includes—

• (a) a clerical or typographical error,

• (b) an error arising from an accidental slip or omission, or

• (c) a defect of form.

When specified sanctions take effect.

69.

• (a) no appeal under Regulation 66 against the adverse assessment is lodged with the Court within the period for lodging the appeal, or

• (b) an appeal under Regulation 66 against the adverse assessment which has been lodged with the Court within the period for lodging the appeal is withdrawn or abandoned,

then the specified sanctions, as confirmed or varied in the order, if any, obtained under Regulation 70(3)(a), shall take effect on the date of that order or such other date as the Court may specify in that order.

• (2) Where an appeal under Regulation 66 against the adverse assessment is lodged with the Court within the period for lodging the appeal, then the specified sanctions, as confirmed or varied in the order, if any, obtained under Regulation 66(4)(a), shall take effect on the date of that order or such other date as the Court may specify in that order.

Enforcement of adverse assessment (including specified sanctions).

70.

• (a) no appeal under Regulation 66 against the adverse assessment is lodged with the Court within the period for lodging the appeal, or

• (b) an appeal under Regulation 66 against the adverse assessment which has been lodged with the Court within the period for lodging the appeal is withdrawn or abandoned,

then, subject to paragraph (2), the Bank may apply to the Court for an order confirming the adverse assessment (including the specified sanctions).

• (2) Where the assessor was appointed by the Bank at the request of IAASA, such an application shall not be made otherwise than at the request of IAASA but, if IAASA does make a request of the Bank to make such an application, it shall be the duty of the Bank to comply with that request.

• (3) The Court shall determine an application under paragraph (1) by making—

• (a) an order confirming, varying or setting aside the adverse assessment (including the specified sanctions), whether in whole or in part, or

• (b) an order remitting the case to be decided again by the Bank in accordance with the directions of the Court.

• (4) The Court shall not hear an application under paragraph (1) unless—

• (a) the assessee appears at the hearing as respondent to the application, or

• (b) if the assessee does not so appear, the Court is satisfied that a copy of the application has been served on the assessee.

• (5) An application under paragraph (1) may be heard otherwise than in public.

• (6) The Court may, on an application under paragraph (1), make such interim or interlocutory orders as the Court considers necessary in the circumstances.

• (7) The determination of the Court on the hearing of an application under paragraph (1) shall be final, except that the Bank or the respondent, if any, may apply to the Supreme Court to review the determination on a question of law.

• (8) For the avoidance of doubt, it is declared that no variation of an adverse assessment under paragraph (3)(a) may provide for the imposition of a sanction on the assessee which is not a sanction referred to in subparagraphs (a) to (f) of Regulation 67(1).

Publication of certain specified sanctions.

71.

• (a) seriously jeopardise the financial markets, or

• (b) cause disproportionate damage to the parties involved.

Person not liable to be penalised twice for same contravention.

72.

• (a) a sanction referred to in Regulation 67(1)(c) is to be imposed on the assessee by virtue of an order obtained under Regulation 66(4)(a) or 70(3)(a), and

• (b) the acts which constitute the prescribed contravention to which the sanction relates also constitute an offence under a law of the State,

then the assessee is not, in respect of those acts, liable to be prosecuted or punished for that offence under that law.

• (2) A sanction referred to in Regulation 67(1)(c) in respect of a prescribed contravention shall not be imposed on the assessee where—

• (a) the assessee has been found guilty or not guilty of having committed an offence under a provision of these Regulations, and

• (b) all or some of the acts constituting that offence also constitute the prescribed contravention.

Person not to be concerned in management of regulated financial service provider while disqualified.

73.

Power of Bank or IAASA to resolve suspected contraventions, etc.

74.

• (a) the Bank, in the performance of the functions assigned to it as central competent administrative authority under Regulation 36(1), has reason to suspect, or

• (b) IAASA, in the performance of the functions assigned to it as competent authority under Regulation 36(2), has reason to suspect,

that a person (“relevant party”) is committing or has committed a prescribed contravention, it may enter into an agreement in writing with the relevant party to resolve the matter (including at any time before an assessment, if any, has been issued in respect of the relevant party).

• (2) An agreement entered into under paragraph (1)—

• (a) is binding on the Bank or IAASA, as the case may be, and the relevant party, and

• (b) may include terms under which the relevant party accepts the imposition of sanctions.

• (3) An agreement entered into under paragraph (1) may be enforced by the Bank or IAASA, as the case may be, or the relevant party in a court of competent jurisdiction.

PART 11 CO-OPERATION BETWEEN COMPETENT AUTHORITIES

Co-operation between Competent Authorities.

75.

• (a) co-operate with the competent authorities of other Member States, designated under the Directive, whenever necessary, for the purpose of the performance by each of the competent authorities of the Member States (including the Bank or IAASA, as appropriate) of their functions and the making use of their powers (whether set out in the Directive, transparency(regulated markets)law or the measures for the time being adopted by another Member State to implement the Directive), and

• (b) render assistance to competent authorities of other Member States in the performance of their functions (whether set out in the Directive or the measures for the time being adopted by another Member State to implement the Directive).

• (2) In particular and without prejudice to its obligations under section 33AK(10) of the Central Bank Act 1942 , as amended, or section 31 of the Companies (Auditing and Accounting) Act 2003 , as the case may be, nothing in any law shall prevent the Bank or IAASA from exchanging confidential information. Information thus exchanged shall be covered by the obligation of professional secrecy to which the persons employed or formerly employed by the competent authorities receiving the information are subject.

• (3) The Bank or IAASA may conclude, for their respective purposes, cooperation agreements with the competent authorities or bodies of third countries enabled by their respective legislation providing for the exchange of information so as to allow the carrying out of any of the tasks assigned by the Directive to the competent authorities in accordance with Article 24 of the Directive.

• (4) Such an exchange of information—

• (a) is subject to the authority with whom the information is exchanged guaranteeing that a level of professional secrecy at least equivalent to that referred to in Article 25 of the Directive shall apply to the information, and

• (b) shall be intended for the performance of the supervisory task of the authorities or bodies mentioned in paragraph (3).

• (5) Without prejudice to paragraph (4), where the information proposed to be exchanged originates in another Member State—

• (a) it shall not be exchanged without the express consent of the competent authority which disclosed it in the first place, and

• (b) if the purpose for which it was so disclosed was limited to any extent specified in that consent, shall be exchanged only for the purpose so specified.

PART 12 PENALTIES, GENERAL AND OTHER MISCELLANEOUS PROVISIONS

Offences and penalties generally.

76.

• (2) Where any offence is committed under another provision of this Regulation by a body corporate and is proved to have been committed with the consent, connivance or approval of or to have been attributable to the wilful neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and is liable to be proceeded against and punished as if he or she was guilty of the first mentioned offence.

• (3) A person who contravenes Regulation 54(6) or 73 shall be guilty of an offence.

• (4) A person who, knowing the information to be so false or misleading, or being reckless as to whether or not it is so false or misleading, discloses information in purported compliance with a requirement imposed on the person by or pursuant to these Regulations which is false or misleading in a material respect shall be guilty of an offence.

• (5) A person who is guilty of—

• (a) an offence under this Regulation other than an offence referred to in subparagraph (b),

or

• (b) one or more further offences under paragraph (1), for each such offence,

shall be liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both.

• (6) Every offence under this Regulation is an offence to which section 21 (penalties on indictment) of the Investment Funds, Companies and Miscellaneous Provisions Act 2006 applies.

Annual report of Bank and IAASA.

77.

• (2) IAASA shall give an account of the performance of its functions under these Regulations in its annual report under section 22 of the Companies (Auditing and Accounting) Act 2003 .

Fees and charges.

78.

• (2) IAASA may, for the purpose of defraying the expenses incurred by it in performing its functions under these Regulations, impose charges on issuers admitted to trading on a regulated market at such rates as are from time to time determined by it with the consent of the Minister.

• (3) The Minister shall, where he or she considers it appropriate to do so, consult with any persons who are, in the Minister’s opinion, interested in the matter before he or she consents to any determination by IAASA of rates of charges under paragraph (2).

• (4) Charges imposed by IAASA under paragraph (2) shall be recoverable by IAASA from the person on whom they have been imposed as a simple contract debt in any court of competent jurisdiction.

Transitional — provisions of a substantive nature.

79.

• (b) An issuer whose financial year begins before 20 January 2007 shall comply with Regulations 4 to 9 on and from the beginning of its next financial year.

• (2)
• (a) This paragraph applies to an issuer of debt securities which were admitted to trading on a regulated market in a Member State before 1 January 2005 if the home Member State had decided to allow such an issuer to benefit from the provisions of Article 27 of Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 at the point of admission of those securities.

• (b) For the financial years falling within the period for which this paragraph applies, such an issuer need not disclose its half-yearly financial report in accordance with Regulations 6 to 8.

• (c) This paragraph applies for the period of 10 years following 1 January 2005.

• (3) An issuer need not prepare its financial statements in accordance with Regulation 4(4) or 7(2) for any financial year beginning before 1 January 2007 if:

• (a) the issuer’s registered office is in a third country; and

• (b) the issuer prepares its financial statements in accordance with internationally accepted standards.

• (4)
• (a) This paragraph applies to an issuer:

• (i) whose debt securities only are admitted to trading; and

• (ii) whose home Member State is the State.

• (b) Such an issuer is not required to disclose financial statements in accordance with Regulation 7(2)(a) for the financial year (and that financial year only) beginning on or after 1 January 2006.

• (5)
• (a) This paragraph applies to an issuer of debt securities:

• (i) that is incorporated in a third country (“the third country”);

• (ii) whose home Member State is the State; and