Central Bank Reform Act 2010

• (2) Without prejudice to the generality of subsection (1), the Head of Financial Regulation may serve a notice under subsection (1) on—

• (a) a regulated financial service provider F41[or holding company],

• (b) a former regulated financial service provider F41[or former holding company], or

• (c) an officer or employee, or former officer or employee, of a regulated financial service provider F41[or holding company] or a former regulated financial service provider F41[or former holding company].

• (3) An evidentiary notice shall—

• (a) specify the matter to which the evidence relates, or specify or describe the document to be produced or the information to be provided, as the case requires,

• (b) in the case of a notice to appear before the Head of Financial Regulation to give evidence—

• (i) specify the date, time and place at which the person is required to appear before the Head of Financial Regulation, and

• (ii) state whether and to what extent the evidence is to be given orally or on affidavit,

and

• (c) in the case of a notice to provide information or produce a document for examination, specify—

• (i) the date and time by which, and the place at which, the information is to be provided or the document is to be produced, and

• (ii) the officer or employee of the Bank to whom the information is to be provided or the document produced.

• (4) The Head of Financial Regulation may take a copy or copies of a document produced pursuant to an evidentiary notice, and may retain any such copy.

• (5) Nothing in this section affects any power of the Bank, the Governor or the Head of Financial Regulation to obtain documents or information otherwise than under this section.

33. Offence of failing to appear.

33.— (1) A person commits an offence if, having been required to appear before the Head of Financial Regulation in compliance with an evidentiary notice, the person fails to comply with the requirement, and has not been excused, or released from further attendance, by the Head of Financial Regulation.

• (2) Subsection (1) does not apply if the person has a reasonable excuse.

34. Investigation into fitness and probity — conduct of proceedings.

34.— (1) The Head of Financial Regulation may hear oral evidence where he or she is satisfied that it is necessary to do so for the proper conduct of an investigation.

• (2) The Head of Financial Regulation may permit a person giving oral evidence to be cross-examined.

• (3) The Head of Financial Regulation shall determine the procedures for the conduct of proceedings in an investigation, subject to any regulations made by the Bank under section 53 (2).

35. Proceedings normally to be in private.

35.— (1) Except as provided by this section, evidence to be given, or a document to be produced, to the Head of Financial Regulation by a person who appears before the Head of Financial Regulation in compliance with an evidentiary notice shall be given or produced in private.

• (2) If a person who appears before the Head of Financial Regulation in compliance with an evidentiary notice requests that the matter or any part of it be dealt with in public, the Head of Financial Regulation shall comply with the request unless—

• (a) the matter raises issues that, in the opinion of the Head of Financial Regulation, should be dealt with in private, or

• (b) the Head of Financial Regulation considers that it is necessary or desirable to deal with the matter or part of it in private in order to avoid the disclosure of information of the kind referred to in section 33AK(1A) of the Act of 1942.

• (3) Subject to subsections (1) and (2), if the Head of Financial Regulation is satisfied that it is desirable in the public interest that the evidence to be given should be given, or the document to be produced should be produced, in public, the Head of Financial Regulation may direct accordingly.

• (4) If the evidence is to be given, or the document is to be produced, in private, the Head of Financial Regulation may do either or both of the following:

• (a) give directions as to the persons (other than the Head of Financial Regulation or an officer or employee of the Bank) who may be present during the proceeding;

• (b) give directions preventing or restricting the publication of the whole or any part of the evidence or of matters contained in the document.

• (5) If the evidence is to be given, or the document is to be produced, in private, a person (other than the person required to appear before the Head of Financial Regulation, the Head of Financial Regulation or an officer or employee of the Bank) may be present only if entitled to be present because of a direction given under subsection (4)(a).

• (6) A person who contravenes a direction of the Head of Financial Regulation under subsection (4)(b) commits an offence.

36. Offence of failing to produce document, etc.

36.— (1) A person commits an offence if, having been required to produce a document or provide information to the Head of Financial Regulation in compliance with an evidentiary notice, he or she fails to comply with the requirement and has not been excused by the Head of Financial Regulation.

• (2) Subsection (1) does not apply if the person has a reasonable excuse.

• (3) It is a reasonable excuse for the purposes of subsection (2) that—

• (a) the person does not have the document or information and cannot by any reasonable effort obtain it; or

• (b) the person could not be compelled to produce the document in, or provide the information to, a court of law.

• (4) Subsection (3) does not limit what is a reasonable excuse for the purposes of subsection (2).

37. Offence of refusing to answer question, etc.

37.— (1) A person appearing before the Head of Financial Regulation in compliance with an evidentiary notice commits an offence if the person—

• (a) refuses or fails to give evidence in compliance with the evidentiary notice, or

• (b) refuses or fails to answer a question put to the person by the Head of Financial Regulation or in cross-examination with the permission of the Head of Financial Regulation.

• (2) Subsection (1) does not apply if the person has a reasonable excuse.

• (3) It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to answer a question that the answer might tend to incriminate the person.

• (4) Subsection (3) does not limit what is a reasonable excuse for the purposes of subsection (2).

• (5) If a person alleges that he or she has a reasonable excuse for refusing or failing to give evidence, or refusing or failing to answer a question, he or she shall provide a written statement setting out details of the excuse to the Head of Financial Regulation.

• (6) The Bank may have regard to the contents of a statement under subsection (5) for the purposes of the exercise of its powers and the performance of its functions under the Central Bank Acts 1942 to 2010.

• (7) A statement under subsection (5) is not admissible in evidence, against the person who made it, in proceedings in relation to an offence.

38. Privilege for evidence given under this Chapter, etc.

38.— Evidence given to the Head of Financial Regulation in accordance with this Chapter, and any report prepared pursuant to section 41 on the basis of such evidence, is absolutely privileged.

39. Payment of allowances and expenses to persons who appear before Head of Financial Regulation.

39.— (1) A person (other than a person to whom subsection (2) applies) who appears before the Head of Financial Regulation in compliance with an evidentiary notice is entitled to be paid such allowances and travelling or other expenses as the Head of Financial Regulation may reasonably allow.

• (2) This subsection applies to—

• (a) a person whose fitness and probity is being investigated under this Part,

• (b) a regulated financial service provider F42[or holding company] or a former regulated financial service provider F42[or former holding company], and

• (c) a person called or put forward by a person referred to in paragraph (a) or (b) to give evidence.

• (3) All allowances and expenses payable under subsection (1) are payable by the Bank.

40. Head of Financial Regulation may certify failure to produce document, etc.

40.— (1) If a person refuses or fails—

• (a) to produce a document to the Head of Financial Regulation in accordance with an evidentiary notice,

• (b) to provide information to the Head of Financial Regulation,

• (c) to attend before the Head of Financial Regulation in accordance with an evidentiary notice, or

• (d) to answer a question put to him or her by the Head of Financial Regulation,

the Head of Financial Regulation may certify the refusal or failure to the Court.

• (2) The Court may, after hearing any witnesses who may be produced against or on behalf of the person alleged to have so refused or failed and any statement which may be offered in defence, make any order or give any direction it thinks fit.

• (3) Without prejudice to the generality of subsection (2), the Court may—

• (a) order the person concerned to attend or re-attend before the Head of Financial Regulation, or to produce a particular document, provide particular information or answer a particular question put to him or her by the Head of Financial Regulation, or

• (b) order that the person concerned need not produce a particular document, provide particular information or answer a particular question put to him or her by the Head of Financial Regulation.

• F43[(4) Where the person concerned claims to be entitled to refuse to produce a document, to provide information, or to answer a question, on the grounds of legal professional privilege, the Court may, without prejudice to the generality of subsection (2), give directions as to the appointment of a person with suitable legal qualifications, possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the Court considers to be appropriate for the purpose of—

• (a) examining the material for which the person claims legal professional privilege, and

• (b) preparing a report for the Court with a view to assisting or facilitating the Court in deciding what action to take under this section.]

41. Head of Financial Regulation to prepare report.

F44[41.— (1) Where the Head of Financial Regulation has completed an investigation under this Chapter, he or she shall, after considering—

• (a) the notice under section 25A(1),

• (b) any relevant information or evidence gathered or received by the Head of Financial Regulation in the course of the investigation, and

• (c) any response made by the person to whom the investigation relates in accordance with a statement referred to in section 25A(2)(c), and any other relevant submission or statement made by the person in the course of the investigation,

as soon as practicable prepare a draft report of the investigation.

• (2) The Head of Financial Regulation shall, as soon as practicable after preparing the draft report, serve on the person whose fitness and probity was the subject of the investigation, and any regulated financial service provider or holding company concerned—

• (a) a copy of the draft report,

• (b) a copy of this section, and

• (c) a notice in writing stating that the person, and any regulated financial service provider or holding company concerned, may make submissions in writing to the Head of Financial Regulation on the draft report within the period stated in the notice, which shall be—

• (i) 7 days from the date on which the notice is served, or

• (ii) such longer period as the Head of Financial Regulation considers necessary to provide an opportunity to respond.

• (3) The Head of Financial Regulation shall, as soon as practicable after the end of the period referred to in paragraph (c) of subsection (2), and having considered any submissions made in accordance with that paragraph, make any revisions to the draft report that in the opinion of the Head of Financial Regulation are warranted, and finalise the report.

• (4) The Head of Financial Regulation shall not make any recommendation, or express any opinion, in a draft report under subsection (1) or in a final report under subsection (3), as to whether any prohibition (or, if so, what prohibition) should be imposed under section 43 if the Bank or the Governor forms the opinion referred to in subsection (1) of that section.

• (5) The Head of Financial Regulation shall, as soon as practicable after the report has been finalised under subsection (3), provide to the Bank and the Governor, and serve on the person whose fitness and probity was the subject of the investigation, and any regulated financial service provider or holding company concerned a copy of—

• (a) the final report, and

• (b) any submissions made in accordance with paragraph (c) of subsection (2).]

Chapter 4 Prohibition of certain persons from performing controlled functions

42. Definitions (Chapter 4).

42.— In this Chapter—

F45[“prohibited person” means a person who is the subject of a prohibition imposed under section 43(1).]

F46[…]

43. Bank may prohibit person from carrying out controlled function, etc.

43.—F47[(1) If the Bank or the Governor has reasonably formed the opinion that a person is not of such fitness and probity as is appropriate to perform a particular controlled function, a specified part of a controlled function, or any controlled function, the Bank or the Governor, as the case may be, may, subject to subsections (3) and (4), impose on the person a prohibition that, as respects the controlled function, the specified part of a controlled function, or any controlled function—

• (a) forbids the person—

• (i) to carry out the function or part at all, or

• (ii) to carry it out otherwise than in accordance with a specified condition or conditions,

• (b) forbids the person—

• (i) to carry out the function or part in relation to a specified regulated financial service provider or holding company or specified regulated financial service providers or holding companies,

• (ii) to carry it out in relation to a specified class or specified classes of regulated financial service providers or holding companies, or

• (iii) to carry it out in relation to any regulated financial service provider or holding company,

and

• (c) is imposed indefinitely or for a specified period.]

• (2) Without prejudice to the generality of subsection (1), the Bank or the Governor may form the opinion referred to in that subsection if satisfied that—

• (a) the person does not have the experience, qualifications or skills necessary to perform properly and effectively the controlled function, the specified part of a controlled function or any controlled function, as the case may be,

• (b) the person does not satisfy an applicable standard of fitness and probity in a code issued pursuant to section 50,

• F47[(c) the person has committed or participated in serious misconduct in relation to the affairs of a regulated financial service provider or holding company,]

• F48[(ca) the person, being a person who has been appointed to perform a pre-approval controlled function, has failed to make a disclosure to the Bank under section 38(2) of the Central Bank (Supervision and Enforcement) Act 2013 or has made such a disclosure knowing it to be false or misleading in a material respect,]

• (d) the person has directly or indirectly provided information to the Bank, the Governor or the Head of Financial Regulation (whether pursuant to this Part or otherwise) that the person knew or ought to have known was false or misleading,

• (e) the person has directly or indirectly provided information that the person knew or ought to have known was false or misleading to another person in order for it to be provided to the Bank, the Governor or the Head of Financial Regulation,

• (f) the person has caused or sought to cause information requested by the Head of Financial Regulation by evidentiary notice from a regulated financial service provider F49[or holding company] or a person who is carrying out a controlled function not to be provided by the due date,

• (g) the person has failed to comply with an evidentiary notice or a suspension notice, or

• (h) the person has been convicted of an offence (whether in the State or outside the State) of money laundering or terrorist financing or an offence involving fraud, dishonesty or breach of trust.

• F49[(2A) Any finding of fact made by the Bank or the Governor for the purpose of forming the opinion referred to in subsection (1) shall be made on the balance of probabilities.]

• (3) The Bank or the Governor shall not F47[impose a prohibition on a person under subsection (1)] unless—

• (a) either—

• (i) all of the following requirements have been satisfied:

• (I) the Head of Financial Regulation has conducted an investigation into the person’s fitness and probity in accordance with F47[Chapter 3];

• (II) section 41 has been complied with in relation to that investigation and the report of it;

• (III) the Bank or the Governor, as the case may be, has considered the report and any submissions made F47[in accordance with paragraph (c) of section 41(2)],

or

• (ii) there are undisputed facts that in the reasonable opinion of the Bank or the Governor render an investigation unnecessary, and the person F47[, and any person to whom subsection (3A) applies,] have been afforded a reasonable opportunity to make a submission in relation to the matter,

• F47[(b) the person and any person to whom subsection (3A) applies—

• (i) have access to any material taken into account by the Bank or the Governor for the purpose of ensuring that the proposed decision is consistent and proportionate, having regard to other decisions under subsection (1), and

• (ii) have been afforded such a hearing in relation to the proposed decision as is necessary to do justice in the circumstances,

and

• (c) the Bank or the Governor, as the case may be, is satisfied that the imposition of the prohibition is necessary in the circumstances.]

• F49[(3A) In relation to the imposition of a prohibition on any person, this subsection applies—

• (a) where the person is subject to a suspension notice, to any regulated financial service provider or holding company on which the Head of Financial Regulation is required by section 26(5) to serve a copy of the notice,

• (b) to any regulated financial service provider or holding company in relation to which, to the knowledge of the Bank or the Governor, as the case may be, the person performs a controlled function to which the prohibition would apply,

• (c) to any regulated financial service provider or holding company which, to the knowledge of the Bank or the Governor, as the case may be, proposes to appoint the person to perform in relation to it a controlled function to which the prohibition would apply, and

• (d) to any regulated financial service provider or holding company which the Bank or the Governor, as the case may be, has reason to believe is considering the appointment of the person to perform in relation to it a controlled function to which the prohibition would apply.]

• (4) When considering whether to F47[impose a prohibition under subsection (1)], the Bank or the Governor, as the case may be, shall have particular regard to—

• (a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and

• (b) the need to protect users of financial services.

• F49[(4A) A prohibition under subsection (1) shall be imposed by a notice in writing (in this Part referred to as a "prohibition notice").

• (4B) Where more than one prohibition is imposed under subsection (1) on the same person, they may be imposed by the same prohibition notice.

• (4C) A prohibition notice—

• (a) shall be served on the prohibited person, and

• (b) may be served on a regulated financial service provider or holding company.

• (4D) Subject to section 46, a prohibition notice does not take effect unless confirmed on an application under section 45.]

• (5) F50[…]

• (6) F50[…]

• (7) F50[…]

Subject to section 46, a prohibition notice ceases to have effect at the end of 2 months (or a shorter period specified in the notice) beginning on the day after it is first served as mentioned in paragraph (a) if no application is made to the Court within that period.

• (8) A prohibited person shall not perform a controlled function if doing so would require the person to contravene a prohibition notice served on the person.

• F47[(9) A regulated financial service provider or holding company shall not permit a prohibited person to perform a controlled function in relation to it if doing so would require the person to contravene a prohibition notice served on it.]

• (10) The Bank may publish a prohibition notice if, in the opinion of the Governor, it is necessary to do so in order to achieve the purposes of this Part.

• (11) A prohibition notice does not alter the contractual rights of any person to remuneration or benefits. Those rights shall continue to be determined in accordance with the relevant contract.

• (12) F50[…]

44. Enforcement of certain prohibition notices.

44.— F51[…]

45. Application to Court to confirm prohibition notice.

45.—F52[(1) As soon as practicable after the service of a prohibition notice on the prohibited person, the Bank or the Governor, as the case may be, shall, subject to section 46, make an application to the Court for confirmation of the notice.]

• F53[(1A) An application under subsection (1) may be made on an ex parte basis provided that the prohibited person informs the Bank or the Governor, as the case may be, in writing that he or she agrees to the application being made ex parte.]

• (2) Without limiting the exercise of the judicial function with respect to a particular case, it shall be the duty of the High Court, in so far as it is practicable, to hear and determine an application under this section within 3 months after the date on which the application is made to it.

• (3) If when hearing an application under F52[this section] the Court is satisfied that, for reasons of confidentiality or commercial sensitivity or in order to avoid the disclosure of information of the kind referred to in section 33AK(1A) of the Act of 1942, the hearing of the Court should be held otherwise than in public, the Court may so order.

• (4) The Court may, on the hearing of an application under F52[this section], consider evidence not adduced or hear an argument not made to the Bank or the Governor, if the Court is satisfied that—

• (a) there are cogent reasons justifying the failure to adduce the evidence or make the argument to the Governor or the Bank, and

• (b) it is just and equitable for the Court to consider the evidence or hear the argument, as the case may be.

• (5) On an application under this section—

• (a) if the Court is satisfied that there is a reasonable basis (as set out in subsection (6)) for the opinion of the Bank or the Governor, as the case may be, that the prohibited person concerned is not of such fitness and probity as is appropriate to perform the relevant controlled function or part of a controlled function, or any controlled function (as the case may be), the Court may make—

• (i) an order confirming the relevant prohibition notice,

• (ii) if the Court considers that it is necessary in the interests of justice, or for any other good reason, to vary the prohibition notice, an order varying or limiting it (including by imposing a condition or conditions on the prohibited person or a F52[regulated financial service provider or holding company] concerned), and

• (iii) any other additional or ancillary order it thinks fit,

and

• (b) if the Court is not satisfied as provided for in paragraph (a), the Court may make—

• (i) an order setting aside the notice,

• (ii) an order remitting the matter to the Bank or the Governor for reconsideration in accordance with any directions by the Court (whether or not the Court also sets aside the notice), or

• (iii) any other order it thinks fit.

• (6) For the purposes of subsection (5)(a), there is a reasonable basis for an opinion if, taking into account the expertise and specialist knowledge possessed by the Bank or the Governor, as the case requires, the opinion (and the process that led to its formation) was not vitiated by—

• F52[(a) a serious and significant error, or a series of errors which, taken together, are serious and significant,]

• (b) a mistake of law, or

• (c) the evidence, taken as a whole, not supporting the F52[opinion].

• (7) When considering whether to make an order under subsection (5), the Court shall have particular regard to—

• (a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and

• (b) the need to protect users of financial services.

• (8) An order under subsection (5) may be expressed to have effect—

• (a) indefinitely, or for a particular period that the Court thinks appropriate, or

• (b) until further order of the Court.

• (9) A prohibition notice that has been confirmed by the Court (whether or not also varied by the Court) has effect as an order of the Court and may be enforced accordingly.

• (10) Section 43 applies to any prohibition notice made by the Bank F53[or the Governor] after reconsideration in accordance with an order referred to in subsection (5)(b)(ii).

• (11) The setting aside by the Court of a prohibition notice does not of itself prevent the further exercise of the powers of the Bank, the Governor or the Head of Financial Regulation under this Part.

45A. F54[Application to vary or revoke prohibition notice

45A.— (1) An application for an order varying or setting aside a prohibition notice confirmed under section 45 may be made to the Court—

• (a) by the Bank or the Governor, as the case may be, or

• (b) by the prohibited person.

• (2) An application made by the Bank or the Governor under subsection (1) may be made on an ex parte basis provided that the prohibited person informs the Bank or the Governor, as the case may be, in writing that he or she agrees to the application being made ex parte.

• (3) If on an application under this section the Court is satisfied that—

• (a) since the confirmation of the prohibition notice under section 45, there has been a change in circumstances, and

• (b) the change is such that, if an application for confirmation were made at the time of the application under subsection (1), a different decision would be taken in relation to the application for confirmation,

the Court may make an order setting aside or, subject to subsection (4), varying the prohibition notice as it thinks fit.

• (4) An order under this section may not vary a prohibition notice in a way that, in the opinion of the Court, would make it more onerous to the prohibited person.

• (5) Subsections (2), (3), (7) and (11) of section 45 shall apply for the purposes of an application or the making of an order under this section subject to any necessary modifications.]

46. Agreement between Bank or Governor, prohibited person and regulated financial service provider.

F55[46.—(1) Where the Bank or the Governor has issued a prohibition notice, the prohibited person and any person to whom subsection (2) applies may agree in writing with the Bank or the Governor, as the case may be, to comply with the prohibition notice for such period as is agreed.

• (2) Where the prohibited person is performing a controlled function at the time of issue of the prohibition notice, this subsection applies to the regulated financial service provider or holding company in relation to which that person is at that time performing the controlled function.

• (3) Where a prohibition notice is the subject of an agreement under this section—

• (a) the prohibition notice has effect for the period agreed in the agreement,

• (b) sections 43(4D) and 45 do not apply (and section 43(8) and (9) apply accordingly), and

• (c) if the prohibited person performs a controlled function in contravention of the prohibition notice, or if a person to whom subsection (2) applies who is a party to the agreement permits the prohibited person to perform a controlled function in contravention of the prohibition notice, the Head of Financial Regulation may apply ex parte to the Court for an order directing the person concerned to comply with the notice.

• (4) If the Bank or the Governor, as the case may be, considers that there is no further need to continue a prohibition notice that is the subject of an agreement under this section, the Bank or the Governor, as the case may be, may terminate the agreement by written notice to the other parties.

• (5) On termination of an agreement under subsection (4) the prohibition notice ceases to have effect.]

Chapter 5 Miscellaneous

47. Use of information.

47.— The Bank may make use of—

• (a) information and evidence gathered by the Head of Financial Regulation in the course of an investigation under Chapter 3,

• (b) anything in any submission made to the Head of Financial Regulation pursuant to section 41, and

• (c) anything in any document or evidence placed before the Court in the course of proceedings under Chapter 3 or 4,

for the purposes of any statutory function of the Bank (including, in particular, an inquiry pursuant to Part IIIC of the Act of 1942 and the imposition of sanctions as a result of such an inquiry).

48. Offences of providing false or misleading information, etc.

48.— (1) A person shall not provide to the Head of Financial Regulation or the Bank, for the purposes of this Part, information that the person knows or ought to know is false or misleading.

• (2) A person who is carrying out, or proposes to carry out, a controlled function shall not provide information or a document that the person knows or ought to know is false or misleading to a regulated financial service provider F56[or a holding company] with a view to the information or document being provided to the Head of Financial Regulation or the Bank for the purposes of this Part.

• (3) A person shall not give the Head of Financial Regulation or the Bank, for the purposes of this Part, a document (whether in response to an evidentiary notice or otherwise) that the person knows or ought to know is false or misleading or is not what it purports to be.

• (4) A person (in this subsection called the “examinee”) who is appearing before the Head of Financial Regulation shall not, in an answer to a question put by the Head of Financial Regulation or another person with the consent of the Head of Financial Regulation, make a statement that the examinee knows or ought to know is false or misleading in a material particular.

• (5) A person who contravenes subsection (1), (2), (3) or (4) commits an offence.

49. Penalties for offences under this Part.

49.— A person guilty of an offence under this Part is 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 or imprisonment for a term not exceeding 5 years or both.

49A. F57[Service of notices and other documents

49A.— For the purposes of the giving or service of notices or other documents under this Part, section 61G of the Act of 1942 applies as if references in that section to the Bank included references to the Governor and the Head of Financial Regulation.]

50. Standards of fitness and probity.

50.— The Bank may issue a code setting out standards of fitness and probity for the purposes of this Part.

51. Effect of this Part.

51.— (1) Nothing in this Part affects any other power of the Bank in relation to the fitness and probity of persons who are officers of, or responsible for the management of, financial service providers F58[or holding companies].

• (2) The Bank may have regard to a document or information gathered or received otherwise than under this Part for any purpose under this Part.

52. Appointment of nominees, etc., for purposes of this Part.

52.— (1) The Governor may at his or her discretion F59[, subject to subsection (4),] appoint a suitably qualified person (including a person who is not an officer or employee of the Bank) to perform a function of the Governor under this Part if the Governor considers it necessary or appropriate to do so to ensure that the functions of the Governor under this Part are performed efficiently and effectively.

• (2) The Head of Financial Regulation may at his or her discretion F59[, subject to subsection (4),] appoint a suitably qualified person (including a person who is not an officer or employee of the Bank) to perform a function (or any part of a function) of the Head of Financial Regulation under this Part if the Head of Financial Regulation considers it necessary or appropriate to do so to ensure that the functions of the Head of Financial Regulation under this Part are performed efficiently and effectively.

• F60[(2A) The Bank may at its discretion F59[, subject to subsection (4),] appoint a suitably qualified person (including a person who is not an officer or employee of the Bank) to perform a function (or any part of a function) of the Bank under this Part, other than any function of making regulations or issuing codes, if the Bank considers it necessary or appropriate to do so to ensure that the functions of the Bank under this Part are performed efficiently and effectively.]

• (3) Without prejudice to the generality of subsections (1) F61[, (2) and (2A)], the power to appoint a person to perform a function in accordance with F61[any] of those subsections includes the power to appoint the person to do any one or more of the following:

• (a) form an opinion required by this Part to be formed by the Governor F61[, the Head of Financial Regulation or the Bank] (as the case may be);

• (b) make an application to the Court;

• (c) certify a matter to the Court.

• F59[(4) The powers conferred by subsections (1), (2) and (2A) shall be exercised so as to secure the following:

• (a) that the function of conducting an investigation in accordance with Chapter 3 where a person has formed the opinion referred to in section 25(1), and any function exercisable under that Chapter for or in connection with the conducting of such an investigation, is not performed by the person who forms that opinion;

• (b) that any function under section 29(1) to (3) in relation to a suspension notice is not performed by a person who performed a function under section 26 in relation to the notice;

• (c) that any function under section 43 in connection with the imposition of a prohibition in circumstances to which subparagraph (i) of subsection (3)(a) of that section applies is not performed by a person involved in the investigation referred to in that subparagraph.

• (5) Paragraph (a) of subsection (4) does not prevent the person who forms the opinion referred to in that paragraph from exercising functions, of management, advice or otherwise, that do not affect the independence of the investigation.]

52A. F62[Independence of decision-makers

52A.—(1) This section applies to the following functions:

• (a) deciding whether to issue a suspension notice;

• (b) deciding whether to confirm a suspension notice;

• (c) deciding whether to impose a prohibition under section 43.

• (2) The Bank shall not rely on any contract of service or contract for services with a person exercising a function to which this section applies in any way that may affect the person’s independence in the exercise of that function.]

53. Regulations — facilitation of performance of functions.

53.— (1) The Minister may, in respect of any difficulty that arises in the operation of this Act during the period of 2 years beginning on the date this section comes into operation, make regulations to do anything that appears necessary or expedient for bringing this Act into operation.

• (2) The Bank may make regulations setting out procedures to be followed in the exercise of the powers of the Bank, the Governor or the Head of Financial Regulation under this Part.

• (3) Regulations made by the Bank under this section may contain such incidental, supplementary and consequential provisions as appear to the Bank to be necessary or expedient for the purposes of the regulations.

• (4) Sections 61C and 61D of the Act of 1942 apply to regulations made under this Part.

PART 3A Duty of Responsibility and Conduct Standards]

53A. F64[Interpretation (Part 3A)

53A.—For the purposes of this Part—

"common conduct standards" shall be construed in accordance with section 53C(1);

"additional conduct standards" shall be construed in accordance with section 53C(2).]

53B. F65[Duty of responsibility

53B.—(1) For the purposes of this section—

• (a) a person has inherent responsibility for an aspect of the affairs of a regulated financial service provider if—

• (i) the person performs a pre-approval controlled function in relation to the regulated financial service provider, and

• (ii) the aspect of its affairs is specified in relation to that function by regulations made under section 48 (2)(ba) of the Central Bank (Supervision and Enforcement) Act 2013,

and

• (b) a person has allocated responsibility for an aspect of the affairs of a regulated financial service provider if—

• (i) the person performs a pre-approval controlled function in relation to the regulated financial service provider, and

• (ii) responsibility for the aspect of its affairs has been allocated to the person performing that function under arrangements adopted by the regulated financial service provider in accordance with regulations made under section 48(2)(bc) of the Central Bank (Supervision and Enforcement) Act 2013.

• (2) A person who has inherent or allocated responsibility for an aspect of the affairs of a regulated financial service provider shall take any steps that it is reasonable in the circumstances for the person to take to secure that, while the person has that responsibility, the aspect of the affairs of the regulated financial service provider is conducted so as to avoid contravention by it of its obligations under financial services legislation.

• (3) For the purposes of subsection (2), avoiding contravention includes avoiding continuation of a contravention.]

53C. F66[Duty to take steps to meet conduct standards

53C.—(1) A person who performs a controlled function in relation to a regulated financial service provider shall take any steps that it is reasonable in the circumstances for the person to take to ensure that the standards set out in section 53E (referred to in this Part as the "common conduct standards") are met.

• (2) A person who performs a pre-approval controlled function in relation to a regulated financial service provider or any other function by which the person may exercise a significant influence on the conduct of the regulated financial service provider’s affairs shall take any steps that it is reasonable in the circumstances for the person to take to ensure that the standards set out in section 53F (referred to in this Part as the "additional conduct standards") are met.]

53D. F67[Relevant circumstances for purposes of sections 53B and 53C

53D.—In determining the circumstances that are relevant for the purposes of subsection (2) of section 53B and subsections (1) and (2) of section 53C, as they apply in the case of any person performing functions in relation to a regulated financial service provider, matters to be considered include—

• (a) the nature of the business of the regulated financial service provider, including its scale and complexity,

• (b) the functions of the person in relation to the regulated financial service provider, and the level of knowledge and experience that a person with such functions could reasonably be expected to have,

• (c) the level of knowledge and experience of the person,

• (d) the existence and application (or otherwise) of—

• (i) appropriate and effective systems (including risk management systems, internal control mechanisms and governance arrangements),

• (ii) effective oversight of any delegation of responsibilities and effective safeguards against any inappropriate delegation, and

• (iii) appropriate and effective procedures for identifying and remedying problems,

• (e) the extent to which any matter referred to in paragraph (d) was within the control or influence of the person, and

• (f) in the case of subsections (1) and (2) of section 53C, any guidelines published by the Bank under section 53G.]

53E. F68[Common conduct standards

53E.—(1) The standards referred to in section 53C(1), in the case of a person who performs a controlled function in relation to a regulated financial service provider, are—

• (a) that the person acts with honesty and integrity, including—

• (i) having regard to the legitimate interests of the regulated financial service provider, its staff, customers and other persons with whom it engages,

• (ii) operating without bias and preventing, or identifying and appropriately managing, conflicts of interest,

• (iii) not exerting pressure or influence on a customer so as to limit his or her ability to make an informed choice in relation to any financial service,

• (iv) not misusing or misappropriating any assets or information of the regulated financial service provider or its customers, and

• (v) reporting appropriately, and not impeding others from reporting, to the management of the regulated financial service provider—

• (I) information relevant to, or giving rise to a suspicion of, the commission of a prescribed contravention or contravention of any other legal obligation or standard imposed on the regulated financial service provider, and

• (II) any matter otherwise adversely affecting the activities or interests of customers, the regulated financial service provider, its related undertakings, or the financial system in the State,

• (b) that the person acts with due skill, care and diligence, including—

• (i) having appropriate knowledge of the business activities of the regulated financial service provider relevant to the controlled function, and the associated risks of those activities,

• (ii) having appropriate knowledge of the legal and regulatory framework, including any legal obligation or standard imposed on the regulated financial service provider, relevant to the controlled function,

• (iii) operating in compliance with the systems and controls, processes, policies and procedures of the regulated financial service provider and any legal obligation or standard imposed on the regulated financial service provider,

• (iv) acting without detriment to customers, the regulated financial service provider, its related undertakings, or the financial system in the State,

• (v) ensuring that any communication, including any record, provided to a customer or other person is clear, accurate, up to date and not misleading,

• (vi) acting appropriately in any decision-making, including collective decision-making, ensuring decisions are properly informed and exercising sound judgement, and

• (vii) monitoring the performance of any delegated tasks and ensuring that those tasks are appropriately performed,

• (c) that the person cooperates in good faith and without delay with the Bank, and with authorities that perform functions in a jurisdiction other than the State that are comparable to one or more of the functions performed by the Bank under financial services legislation, including—

• (i) responding to requests and requirements under financial services legislation in an open and timely manner,

• (ii) disclosing information or records when required to do so under financial services legislation,

• (iii) attending meetings and interviews when required to do so under financial services legislation,

• (iv) not providing false, inaccurate or misleading information, records or explanations,

• (v) not destroying, hiding or putting beyond reach information or records that it is reasonable for the person to expect to be required to be disclosed under financial services legislation, and

• (vi) not engaging in evasive, misleading or obstructive conduct,

• (d) that the person acts in the best interests of customers and treats them fairly and professionally, including—

• (i) ensuring that customers are informed in a clear manner of relevant information relating to financial services of which they ought to be aware, and not impeding the provision of relevant information to customers,

• (ii) communicating with customers in a timely manner having regard to the urgency of any matter and the time required by the customer to consider the relevant information,

• (iii) assessing the needs and circumstances of customers, including their level of knowledge and experience of financial services, their financial circumstances and the range of options available to them, and ensuring that any advice or recommendation provided to customers is appropriate and tailored to their needs and circumstances,

• (iv) ensuring that customers are not misled as to the advantages of any financial service,

• (v) acknowledging and seeking to resolve any complaints received from customers,

• (vi) resolving errors or mistakes affecting customers, and disclosing errors or mistakes to the customers affected in a timely manner, and

• (vii) not acting in a manner that is unfair to customers,

and

• (e) that the person operates in compliance with standards of market conduct and trading venue rules to which the regulated financial service provider is subject by law and any market codes that apply to the affairs of the regulated financial service provider.

• (2) Nothing referred to in a subparagraph of any paragraph of subsection (1), as included in that paragraph, limits the scope of that paragraph or any other paragraph of that subsection.

• (3) In subsection (1), "related undertaking" has the meaning given by section 3 (1) of the Central Bank (Supervision and Enforcement) Act 2013.]

53F. F69[Additional conduct standards

53F.—The standards referred to in section 53C(2), in the case of a person who performs a pre-approval controlled function in relation to a regulated financial service provider or any other function by which the person may exercise a significant influence on the conduct of a regulated financial service provider’s affairs, are—

• (a) that the business of the regulated financial service provider is controlled effectively,

• (b) that the business of the regulated financial service provider is conducted in accordance with its obligations under financial services legislation,

• (c) that any delegated tasks are assigned to an appropriate person with effective oversight, and

• (d) that any information of which the Bank would reasonably expect notice in respect of the business of the regulated financial service provider is disclosed promptly and appropriately to the Bank, including information relevant to, or giving rise to a suspicion or expectation of, any of the following:

• (i) commission of an offence by the regulated financial service provider or a person performing a controlled function in relation to it;

• (ii) commission of a prescribed contravention or any other breach of obligations under financial services legislation by the regulated financial service provider or a person performing a controlled function in relation to it;

• (iii) concealment or deliberate destruction of evidence relating to a matter referred to in subparagraph (i) or (ii);

• (iv) provision of false or misleading information to the Bank relating to a matter referred to in subparagraph (i) or (ii);

• (v) obstruction or impeding of an investigation relating to a matter referred to in subparagraph (i) or (ii);

• (vi) commencement of legal proceedings by or against the regulated financial service provider arising from its obligations under financial services legislation;

• (vii) commencement of legal proceedings against the regulated financial service provider which may impact on its ability to continue to trade;

• (viii) anything that may otherwise interfere significantly with the operation of the regulated financial service provider or its compliance with its obligations under financial services legislation;

• (ix) a decision by the regulated financial service provider to cease to provide financial services of a particular description.]

53G. F70[Guidelines on conduct standards

53G.—(1) The Bank shall prepare, in such form and manner as it considers appropriate, guidelines for the purpose of providing practical guidance for persons to whom subsection (1) or (2) of section 53C applies relating to the application and operation of this Part.

• (2) The guidelines may include different provisions in respect of different classes of persons to whom subsection (1) or (2) of section 53C applies.

• (3) The Bank shall publish guidelines prepared under subsection (1)—

• (a) by notice in Iris Oifigiúil, and

• (b) on a website maintained by or on behalf of the Bank.

• (4) A person to whom subsection (1) or (2) of section 53C applies shall have regard to any guidelines published by the Bank under this section.]

53H. F71[Notification and training for persons subject to conduct standards

53H.—(1) A regulated financial service provider shall for the purpose of ensuring compliance with the common conduct standards and additional conduct standards—

• (a) notify persons performing a controlled function in relation to the regulated financial service provider of the common conduct standards and how they apply to a person performing that function,

• (b) provide training to persons performing a controlled function in relation to the regulated financial service provider to ensure that such persons have appropriate knowledge of the common conduct standards and how they apply to a person performing that function,

• (c) notify persons performing a pre-approval controlled function in relation to the regulated financial service provider or any other function by which the person may exercise a significant influence on the conduct of the regulated financial service provider’s affairs of the additional conduct standards and how they apply to a person performing that function,

• (d) provide training to persons performing a pre-approval controlled function in relation to the regulated financial service provider or any other function by which the person may exercise a significant influence on the conduct of the regulated financial service provider’s affairs to ensure that such persons have appropriate knowledge of the additional conduct standards and how they apply to a person performing that function, and

• (e) establish, maintain and give effect to policies on how the common conduct standards are integrated into the conduct of the affairs of the regulated financial service provider.

• (2) The Bank shall prepare, in such form and manner as it considers appropriate, guidelines for the purpose of providing practical guidance for regulated financial service providers relating to each of the matters referred to in subsection (1).

• (3) The Bank shall publish guidelines prepared under subsection (2)—

• (a) by notice in Iris Oifigiúil, and

• (b) on a website maintained by or on behalf of the Bank.]

53I. F72[Limitation of requirements to produce documents, give information or answer questions

53I.—Nothing in this Part requires a person—

• (a) to produce a document that the person could not have been compelled to produce to a court,

• (b) to give information that the person could not have been compelled to give to a court,

• (c) to answer a question that the person could not have been compelled to answer in a court, or

• (d) to do anything that might tend to incriminate the person.]

F73[PART 4 Overseas Regulators]

54. F74[Co-operation with Member State authorities or third country authorities.

54.— (1) In this section "Member State authority or third country authority" means an authority in a jurisdiction other than that of the State duly authorised to perform functions similar to any one or more of the statutory functions of the Bank.

• (2) At the request of a Member State authority or a third country authority to do so in relation to any matter, the Bank may —

• (a) require information on the matter about which the Bank has required or could require the provision of information or the production of documents under any provision of financial services legislation, or

• (b) authorise one or more than one authorised officer to exercise any of his or her powers for the purposes of investigating the matter.

• (3) In deciding whether or not to exercise any of its powers under subsection (2), the Bank may take into account in particular:

• (a) whether in the country or territory of the Member State authority or third country authority, corresponding assistance would be given to an authority duly authorised in the State to perform functions corresponding to functions exercised by the Member State authority or third country authority;

• (b) whether the case concerns the breach of a law, or other requirement, which has no close parallel in the State or involves the assertion of a jurisdiction not recognised by the State;

• (c) the seriousness of the case and its importance to persons in the State;

• (d) whether it is otherwise appropriate in the public interest to give the assistance sought.

• (4) The Bank may decide that it will not exercise any of its powers under subsection (2) unless the Member State authority or third country authority undertakes to make such contribution towards the cost of such exercise as the Bank considers appropriate.

• (5) Subsections (3) and (4) do not apply if the Bank considers that the exercise of its power is necessary to comply with any obligation created or arising by or under the Treaties governing the European Union.

• (6) If the Bank authorises an authorised officer for the purposes of subsection (2)(b), the Bank may direct the authorised officer to permit a representative of the Member State authority or third country authority to attend, and take part in, any interview conducted for the purposes of the investigation of the matter concerned.

• (7) A direction under subsection (6) is not to be given unless the Bank is satisfied that any information obtained by a Member State authority or third country authority as a result of the interview will be subject to obligations of non-disclosure of information similar to those imposed on the Bank in section 33AK of the Act of 1942.

• (8) A person shall not be required for the purposes of the exercise of any power under this section to answer any question tending to incriminate the person.]

F75[PART 5 Authorised Officers]

55. F75[Definitions (Part 5).

55.— F77[…]]

56. F78[Persons to whom this Part applies.

56.— F79[…]]

57. F80[Appointment of authorised officers.

57.— F81[…]]

58. F82[Warrant of appointment.

58.— F83[…]]

59. F84[Power of authorised officer to enter premises.

59.— F85[…]]

60. F86[Powers of authorised officer.

60.— F87[…]]

61. F88[Warrant required to enter premises.

61.— F89[…]]

62. F90[Authorised officer may attend meetings.

62.— F91[…]]

63. F92[Production of record subject to legal professional privilege not required.

63.— F93[…]]

64. F94[Disclosure or production not to be treated as breach or to affect lien.

64.— F95[…]]

65. F96[Failure to comply with a requirement.

65.—

66. F98[Offence of obstruction or provision of false information.

66.— F99[…]]

SCHEDULE 1 Amendments of Central Bank Acts

Section 14.

PART 1 Amendments of Central Bank Act 1942

Section 14(1).