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Credit Institutions (Stabilisation) Act 2010

Type Act

Publication 2010-12-21

Last updated 2025-07-14

State In force

Source Irish Statute Book

articles 84

Reform history JSON API

PART 1 Preliminary

1. Short title and commencement.

1.— (1) This Act may be cited as the Credit Institutions (Stabilisation) Act 2010.

(2) This Act comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to a particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(3) An order under subsection (2) may, in respect of the amendments of Acts and Regulations set out in Part 8 and the Schedules, appoint different days for the commencement of amendments of different Acts or Regulations or different provisions of them.

2. Interpretation.

2.— (1) In this Act—

“Act of 2008” means the Credit Institutions (Financial Support) Act 2008;

“articles of association” includes—

F1[(a) in the case of a credit institution that is established by charter, its bye-laws, and

(b) in the case of a credit institution that is a building society, its rules;]

“Bank” means the Central Bank of Ireland;

“charge” includes—

(a) a mortgage, judgment mortgage, charge, lien, pledge, hypothecation or other security interest or encumbrance or collateral in or over any property,

(b) an assignment by way of security, and

“CIWUD Directive” means Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 ^1;

“Court” means the High Court;

“credit institution” means a person authorised in the State to accept deposits or other repayable funds from the public and to grant credit on its own account;

“debt security” includes a note, bill, bond or similar financial instrument;

“direction order” has the meaning given by section 9;

“enactment” means—

(a) an Act of the Oireachtas,

(b) a statute that was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and that continues in force by virtue of Article 50 of the Constitution, or

(i) an Act of the Oireachtas, or

(ii) a statute referred to in paragraph (b);

“financial support” has the same meaning as in the Act of 2008;

F2["functions" includes powers, duties, rights and entitlements, and references to the performance of a function include reference to—

(a) in relation to a power, the exercise of the power,

(b) in relation to a duty, the performance of the duty, and

“Governor” means the Governor of the Bank;

“holding company” means a holding company (within the meaning of section 155 of the Companies Act 1963) or a parent undertaking (within the meaning given by the European Communities (Companies: Group Accounts) Regulations 1992 (S.I. No. 201 of 1992));

“interest”, in relation to an asset or liability, means—

(a) the whole or any part or fraction of the asset or liability,

(b) any other estate in, right or title to, or interest in the asset or liability (whether legal or beneficial), or

“loan instrument” means a document that creates or acknowledges a debt or liability (other than a deposit account);

“memorandum of association” includes, in the case of a credit institution that is established by charter, its charter;

“Minister” means the Minister for Finance;

“regulated market” has the same meaning as in the European Communities (Markets in Financial Instruments) Regulations 2007 (S.I. No. 60 of 2007);

“Regulations of 2004” means the European Communities (Reorganisation and Winding-Up of Credit Institutions) Regulations 2004 (S.I. No. 198 of 2004);

“relevant institution” means (subject to section 55)—

(a) a body—

(i) that has its registered office in the State,

(ii) that is, or was on the date on which this Act came into operation, a bank licensed under section 9 of the Central Bank Act 1971, and

(iii) to which financial support F3[, other than a financial incentive under section 38, or undersection 46of theCentral Bank and Credit Institutions (Resolution) Act 2011,No. — of 2011),] has been given or is to be given by the Minister,

(b) a body that has its chief office in the State and is, or was on the date on which this Act came into operation, a building society within the meaning of the Building Societies Act 1989,

(d) a person or body prescribed under section 3,

(e) a subsidiary of a person or body referred to in any of paragraphs (a) to (d), and

(f) a holding company of a person or body referred to in any of paragraphs (a) to (d);

“security” includes—

(a) a charge,

(b) a mortgage,

(d) a right of set-off,

(e) a debenture,

(f) a bill of exchange,

(g) a promissory note,

(h) collateral,

(i) any other means of securing—

(i) the payment of a debt, or

(ii) the discharge or performance of an obligation or liability,

and

(j) any other agreement or arrangement having a similar effect;

“share” includes a share of any type or class including ordinary shares, preference shares, deferred shares, share warrants and stock and in the case of a building society includes investment shares, special investment shares and deferred shares but does not include share accounts;

“special management order” has the meaning given by section 14;

“special manager” means any person appointed as such by the Court or the Minister;

“subordinated creditor” means a creditor of a relevant institution, to any extent that the creditor holds a subordinated liability;

“subordinated liability” means, in respect of a relevant institution, an obligation or a liability in the form of a debt security or loan instrument (or any other document howsoever described or constituted) which is expressed to be, or otherwise ranks, subordinate in right of payment to the claims of depositors and unsubordinated creditors of the relevant institution, whether on a winding up or otherwise, and includes a guarantee;

“subsidiary” means a subsidiary (within the meaning given by section 155 of the Companies Act 1963) or a subsidiary undertaking (within the meaning given by the European Communities (Companies: Group Accounts) Regulations 1992 (S.I. No. 201 of 1992));

“subordinated liabilities order” has the meaning given by section 29;

“transfer order” has the meaning given by section 34.

(2) A reference in this Act to an agreement includes—

(a) any instrument (however described) that creates an obligation, whether made in writing or under seal, and without limiting the generality of the foregoing includes an agreement, an arrangement, an undertaking, a scheme, a licence, a security or an obligation, and

(b) an oral agreement of any kind referred to in paragraph (a).

(3) In this Act—

(a) a reference to an asset includes an interest in an asset, and

(b) a reference to a liability includes an interest in a liability.

(4) A reference in this Act to disposing of an asset or liability includes selling or otherwise transferring, and creating a security or equitable interest in, the asset or liability. For the purposes of this subsection “transfer” includes—

(a) any form of legal or beneficial transfer, including a vesting by operation of law,

(b) a synthetic transfer,

(d) a novation,

(e) an assignment,

(f) an assumption,

(g) sub-participation,

(h) sub-contracting, and

(i) any other form of transfer, acquisition, assumption or vesting recognised by law.

F5[(5) A reference in this Act to the preservation of the financial position of a relevant institution shall be taken to include the need for the relevant institution to comply with such one or more of the following as apply to it:

(a) an order made in relation to it under this Act;

(b) a requirement imposed on it undersection 50;

3. Prescribed institutions.

3.— The Minister may make regulations to prescribe a person (including a body corporate that is incorporated after the coming into operation of this Act) for the purposes of paragraph (d) of the definition of “relevant institution” in section 2 (1) if—

(a) in the case of a body, it has its registered office, chief office or principal place of business in the State,

(b) in the case of an individual, his or her ordinary residence is in the State,

(c) all or any of a relevant institution’s assets or liabilities are transferred, after the coming into operation of this section, to the person under this Act, the Companies Acts, F6[theCentral Bank Act 1971or theBuilding Societies Act 1989], and

(d) the Minister is of the opinion that it is necessary or desirable for the purposes of this Act that the person be so prescribed.

4. Purposes of Act.

4.— The purposes of this Act are—

(a) to address the serious and continuing disruption to the economy and the financial system and the continuing serious threat to the stability of certain credit institutions in the State and the financial system generally,

(b) to implement the reorganisation of credit institutions in the State to achieve the financial stabilisation of those credit institutions and their restructuring (consistently with the state aid rules of the European Union) in the context of the National Recovery Plan 2011 - 2014 and the European Union/International Monetary Fund Programme of Financial Support for Ireland,

(c) to continue the process of reorganisation, preservation and restoration of the financial position of Anglo Irish Bank Corporation Limited begun with the Anglo Irish Bank Corporation Act 2009,

(d) to continue the process of preservation and restoration of the financial position of building societies through the issue of special investment shares under section 18(1A) of the Building Societies Act 1989,

(e) to protect the interests of depositors in credit institutions,

(f) to address the compelling need—

(i) to facilitate the availability of credit in the economy of the State,

(ii) to protect the State’s interest in respect of the guarantees given by the State under the Act of 2008 and to support the steps taken by the Government in that regard,

(iii) to protect the interests of taxpayers,

(iv) to restore confidence in the banking sector and to underpin Government support measures in relation to that sector, and

(v) to align the activities of the relevant institutions and the duties and responsibilities of their officers and employees with the public interest and the other purposes of this Act,

(g) to F7[preserve or restore] the financial position of a relevant institution, and

(h) to empower the Court to impose reorganisation measures through orders made in reliance on the CIWUD Directive.

5. Independence of Bank and Governor not affected.

5.— (1) Nothing in this Act prevents the performance by the Governor or the Bank of their functions in relation to any credit institution authorised or regulated in the State, or affects any obligation arising under the treaties governing the European Union or the European Communities (within the meaning given by section 1 of the European Communities Act 1972) or the ESCB Statute (within the meaning given by section 2 of the Central Bank Act 1942).

(2) The Minister may continue to consult with the Governor in the continuing performance of the Minister’s functions and powers under this Act.

5A. F8[Minister and Bank to have regard to European Union law.

5A.—In performing a function under this Act, the Minister and the Bank shall have regard to the laws of the European Union (including those governing state aid) and any relevant guidance issued by the Commission of the European Union.]

6. Relationship framework.

6.— The Minister may from time to time specify a relationship framework in writing to govern the relationship between the Minister and the Governor in relation to the exercise of the Minister’s powers under this Act.

PART 2 Direction orders

7. Proposed direction orders.

7.— (1) Subject to subsections (2) and (4), the Minister may make a proposed direction order proposing that a relevant institution be directed to take (within a specified period) or refrain from taking (during a specified period) F9[any action, or any series of actions that are together designed to achieve a specified objective,] including, in particular, and without limiting the generality of the foregoing, any one or more of the following:

(a) notwithstanding any statutory or contractual pre-emption rights, the listing rules of a regulated market or the rules of any other market on which the shares of the relevant institution may be traded from time to time, issuing shares to the Minister or to another person nominated by the Minister on terms and conditions that the Minister specifies in the proposed direction order at a consideration that the Minister sets;

(b) applying for the de-listing of the relevant institution’s shares, or the suspension of their listing, on a regulated market, or to change the listing of the relevant institution’s shares from a regulated market to another multi-lateral trading facility;

(c) increasing the authorised share capital (including by the creation of new classes of shares) of the relevant institution to permit it to issue shares to the Minister or to any other person nominated by the Minister;

(d) making a specified alteration to the relevant institution’s memorandum of association and articles of association (including, without prejudice to the generality of the foregoing, the alteration of the rights of shareholders or any class of shareholders);

(e) disposing, on specified terms and conditions, of a specified asset or liability or a specified part of the relevant institution’s undertaking.

(2) The Minister may make a proposed direction order only if the Minister, having consulted with the Governor, is of the opinion that making a direction order in the terms of the proposed direction order is necessary to secure the achievement of a purpose of this Act specified in the proposed direction order.

(3) If the Minister makes a proposed direction order in relation to a relevant institution and the intention of it or part of it is the preservation or restoration of the financial position of a credit institution, the Minister shall declare in the proposed direction order that the proposed direction order or part is made with that intention, in accordance with the CIWUD Directive.

(4) Unless the relevant institution concerned consents to the making of a direction order in the terms of the proposed direction order, or exceptional circumstances (within the meaning of subsection (5)) exist, the Minister shall also, before making a proposed direction order—

(a) deliver a written notice to the relevant institution setting out the terms of the proposed direction order, accompanied by a summary of the reasons why the Minister is of the opinion that a direction order in the terms of the proposed direction order is necessary,

(b) afford the relevant institution 48 hours, or a shorter period on which the Minister and the relevant institution agree, in which to make written submissions to the Minister, and

(5) Exceptional circumstances for the purposes of subsection (4) exist where—

(a) there is an imminent threat to the financial stability of the relevant institution concerned and the Minister is of the opinion that compliance with that subsection would result in significant damage to the financial stability of that relevant institution,

(b) there is an imminent threat to the stability of the financial system in the State and the Minister is of the opinion that compliance with that subsection would result in significant damage to the stability of that financial system, or

(c) the Minister has reasonable grounds for believing that confidentiality with regard to the proposed direction order, or the possibility of the making of a direction order, would not be maintained and that the breach of such confidentiality would have significant adverse consequences.

8. Relevant institution may act in accordance with proposed direction order.

8.— Where a relevant institution consents to the making of a direction order in the terms of a proposed direction order, it may act in accordance with the terms of the proposed order before the Court makes any direction order.

9. Direction orders.

9.— (1) As soon as may be after completion in relation to a proposed direction order of the procedures required by section 7, the Minister shall apply ex parte to the Court for an order (in this Act called a “direction order”) in the terms of the relevant proposed direction order.

(2) The Court, when hearing an ex parte application under subsection (1), shall, if satisfied that the requirements of section 7 have been complied with and that the opinion of the Minister under that section was reasonable and was not vitiated by any error of law, make a direction order in the terms of the proposed direction order (or those terms as varied after consideration of any submission referred to in section 7(4)(c)).

(3) If in a proposed direction order the Minister has declared the intention of preserving or restoring the financial position of a credit institution, and the Court is satisfied that the Minister made the proposed direction order or part of it with that intention, the Court shall declare in the relevant direction order that the direction order or the relevant part of it is a reorganisation measure for the purposes of the CIWUD Directive.

(4) A report prepared by the Bank (whether or not prepared specifically for the purpose of the application) in relation to matters within the Governor’s or the Bank’s responsibilities, including the financial position of the relevant institution, is admissible in evidence at the hearing of the application.

(5) The Court may make a direction order in terms varied or amended from those in the proposed direction order only if the Court is satisfied that—

(a) there has been non-compliance with any of the requirements of section 7 or that the opinion of the Minister under section 7(2) was unreasonable or vitiated by an error of law,

(b) it would be appropriate to do so, having regard to any report referred to in subsection (4), and

(6) F10[…]

F11[(7) A direction order has effect—

(a) if there is an application made undersection 11—

(i) if the Court makes an order undersection 11and makes an order as to the date of effect, at that date,

(ii) if the Court makes an order undersection 11and does not make an order as to the date of effect, the date of that order made undersection 11, or

(iii) if the Court does not make an order undersection 11, 14 days after the publication of the order undersection 9A(1)(b),

(b) if there is no application made undersection 11—

(i) immediately, to the extent that the Court so orders, or

(ii) if the Court does not make an order as to the date of effect, 14 days after the publication of the order undersection 9A(1)(b).]

(8) The Court shall order that a direction order or a term of a direction order has effect immediately where the Court is satisfied that the purpose of the order or term is—

(a) to ensure the immediate and effective issuance of additional share capital in the relevant institution concerned by issuing shares to the Minister or his or her nominee—

(i) to prevent or remedy an imminent breach of the regulatory capital requirements applicable to the relevant institution, or

(ii) to enable the relevant institution immediately to meet regulatory capital targets set by the Bank,

(b) to address an imminent threat to the financial stability of the relevant institution concerned, or

(9) The Court may order in a direction order that action taken by a relevant institution in accordance with section 8 shall be taken to have been taken in compliance with the direction order.

9A. F12[Publication of direction orders.

9A.—(1) The Minister shall, as soon as practicable after a direction order is made—

(a) serve a copy of the direction order on the relevant institution concerned, and

(b) publish the order in 2 newspapers circulating generally in the State.

(2) In a particular case, the Minister may, if he or she thinks it necessary to do so, publish a direction order by an additional means or in an additional place.

(3) Without delay after the service of the copy of the direction order, the relevant institution shall take all reasonable measures to ensure that its members are made aware of the order, including, without limiting the generality of the foregoing—

(a) where the shares of the relevant institution are traded from time to time on a financial market (whether a regulated market or not), making an announcement that relates to the existence of the direction order and its effect, to a regulatory news service generally used by relevant institutions in the State for the purposes of announcements to such markets, and

(b) providing a copy of the direction order to the regulatory news service referred to inparagraph (a).]

10. Application to vary direction order.

10.— The Minister may apply—

(a) on notice, or

(b) in urgent circumstances, ex parte,

to the Court to vary a direction order if the Minister is of the opinion that the variation is necessary to secure the achievement of a purpose of this Act.

11. Application to set aside direction order.

11.— (1) The relevant institution in relation to which a direction order is made or a member of that institution may apply to the Court by motion on notice grounded on affidavit, F13[not later than 14 days after the publication, in accordance withsubsection (1)(b)ofsection 9A, of a direction order,] for the setting aside of the direction order.

F14[(2) The Court shall give such priority to an application undersubsection (1)as is necessary in the circumstances, and may give such directions as it considers appropriate in the circumstances—

(a) with regard to the hearing of the application, or

(b) with regard to a matter that arises during the period beginning with the direction order and ending with the order of the Court under this section.]

(3) On an application under subsection (1), the Court shall set aside the direction order only if it is of the opinion that there has been non-compliance with any of the requirements of section 7 or that the opinion of the Minister under section 7 (2) was unreasonable or vitiated by an error of law.

(4) The Court may, instead of setting aside the direction order, make an order varying or amending that order in the manner it considers appropriate if the Court is satisfied that—

(a) there has been non-compliance with any of the requirements of section 7 or that the opinion of the Minister under section 7 (2) was unreasonable or vitiated by an error of law,

(b) it would be appropriate to do so, having regard to any report referred to in section 9 (4), and

(c) to do so is necessary to secure the achievement of the purpose specified in the direction order or any other purpose of this Act.

F15[(5) On an application undersubsection (1)—

(a) if an order is made setting aside the direction order, the order under this section is effective from the date of its making without prejudice to the validity of anything previously done or taken to have been done under the direction order, or

(b) if an order is made refusing to set aside the direction order and the Court does not make an order undersubsection (4), the order under this section has the effect that the direction order shall be taken to have been effective as if that application had not been made.]

(6) An order under subsection (4) has effect, from the date of its making, to vary or amend the direction order without prejudice to the validity of anything previously done or taken to have been done under the direction order.

F16[(7) The Court, in considering the order it wishes to make under this section, may, where the applicant is a member of a relevant institution, have regard to—

(a) the date on which the applicant became a member of that institution, or increased or decreased the number of shares that the applicant held in that institution, and

(b) the value of the shares acquired by or disposed of by the member—

(i) as at the date or dates on which the shares were acquired or disposed of, as the case may be, and

(ii) as at the date on which the direction order concerned was made.]

PART 3 Special management

12. Interpretation (Part 3).

12.— For the purposes of this Part, a relevant institution is under special management if the Court has made a special management order in relation to it, and the special management has not terminated under section 27.

13. Proposed special management orders.

13.— (1) Subject to subsections (2),(3)and (5), the Minister may make a proposed special management order under this section where the Minister decides that a person who has, in the Minister’s opinion, the requisite knowledge, expertise and experience of the financial services sector to be the special manager of a relevant institution should be appointed as the special manager of that relevant institution.

(2) The Minister may make a proposed special management order only if the Minister, having consulted with the Governor, is of the opinion that making a special management order in the terms of the proposed special management order is necessary to secure the achievement of a purpose of this Act specified in the F17[proposed special management order].

(3) If the Minister makes a proposed special management order in relation to a relevant institution and the intention of it or part of it is the preservation or restoration of the financial position of a credit institution, the Minister shall declare in the proposed special management order that the proposed special management order or part is made with that intention, in accordance with the CIWUD Directive.

(4) Unless the relevant institution concerned consents to the making of a special management order in the terms of the proposed special management order, or exceptional circumstances (within the meaning of subsection (5)) exist, the Minister shall also, before making a special management order—

(a) deliver a written notice to the relevant institution setting out the terms of the proposed special management order, accompanied by a summary of the reasons why the Minister is of the opinion that a special management order in the terms of the proposed special management order is necessary,

(b) afford the relevant institution 48 hours, or a shorter period on which the Minister and the relevant institution agree, in which to make written submissions to the Minister, and

(5) Exceptional circumstances for the purposes of subsection (4) exist where—

(b) there is an imminent threat to the stability of the financial system in the State and the Minister is of the opinion that compliance with subsection (4) would result in significant damage to the stability of that financial system, or

(c) the Minister has reasonable grounds for believing that confidentiality with regard to the proposed special management order, or the possibility of the making of a special management order, would not be maintained and that the breach of such confidentiality would have significant adverse consequences.

(6) The proposed special management order shall—

(a) name the person to be appointed as the special manager, or

(b) name a firm all of whose members shall be taken to be appointed as special managers.

(7) The proposed special management order shall include the proposed terms of appointment of the special manager, and may—

(a) specify particular matters that are to be reserved for decision or approval by the Minister, or

(b) direct the special manager (subject to regulatory requirements) to take particular action or refrain from taking particular action.

14. Special management orders.

14.— (1) As soon as may be after completion in relation to a proposed special management order of the procedures required by section 13, the Minister shall apply ex parte to the Court for an order (in this Act called a “special management order”) in the terms of the proposed special management order.

(2) The Court, when hearing an ex parte application under subsection (1), shall, if satisfied that the requirements of section 13 have been complied with, and that the opinion of the Minister under that section was reasonable and was not vitiated by any error of law, make a special management order in the terms of the proposed special management order (or those terms as varied after consideration of any submission referred to in section 13(4)(c)).

(3) A report prepared by the Bank (whether or not prepared specifically for the purpose of the application) in relation to matters within the Governor or the Bank’s responsibilities, including the financial position of the relevant institution, is admissible in evidence at the hearing of the application.

(4) If in a proposed special management order the Minister has declared the intention of preserving or restoring the financial position of a credit institution, and the Court is satisfied that the Minister made the proposed special management order or part of it with that intention, the Court shall declare in the relevant special management order that the special management order or the relevant part of it is a reorganisation measure for the purposes of the CIWUD Directive.

(5) The Court may make a special management order on terms varied or amended from those in the proposed special management order only if it is of the opinion that—

(a) there has been non-compliance with any of the requirements of section 13 or that the opinion of the Minister under section 13(2) was unreasonable or vitiated by an error of law,

(b) it would be appropriate to do so, having regard to any report referred to in subsection (3), and

(c) to do so is necessary to secure the achievement of the purpose specified in the proposed special management order or any other purpose of this Act.

(6) F18[…]

(7) A special management order is effective immediately on its making, subject to the right of application under section 16.

14A. F19[Publication of special management orders.

14A.—(1) The Minister shall, as soon as practicable after a special management order is made—

(a) serve a copy of the special management order on the relevant institution concerned, and

(b) publish the order in 2 newspapers circulating generally in the State.

(2) In a particular case, the Minister may, if he or she thinks it necessary to do so, publish a special management order by an additional means or in an additional place.

(3) Without delay after the service of the copy of the special management order, the relevant institution shall take all reasonable measures to ensure that its members are made aware of the order, including, without limiting the generality of the foregoing—

(a) where the shares of the relevant institution are traded from time to time on a financial market (whether a regulated market or not), making an announcement that relates to the existence of the special management order and its effect, to a regulatory news service generally used by relevant institutions in the State for the purposes of announcements to such markets, and

(b) providing a copy of the special management order to the regulatory news service referred to inparagraph (a).]

15. Application to vary special management order.

15.— The Minister may apply—

(a) on notice, or

(b) in urgent circumstances, ex parte,

to the Court to vary a special management order if the Minister is of the opinion that the variation is necessary to secure the achievement of a purpose of this Act.

16. Application to set aside special management order.

16.— (1) The relevant institution in relation to which a special management order is made or a member of that institution may apply to the Court by motion on notice grounded on affidavit, F20[not later than 14 days after the publication, in accordance withsubsection (1)(b)ofsection 14A, of the making of a special management order,] for the setting aside of the special management order.

F21[(2) The Court shall give such priority to an application undersubsection (1)as is necessary in the circumstances, and may give such directions as it considers appropriate in the circumstances—

(a) with regard to the hearing of the application, or

(b) with regard to a matter that arises during the period beginning with the making of the special management order and ending with the making of the order of the Court under this section.]

(3) On an application under subsection (1), the Court shall set aside the special management order only if the Court is satisfied that there has been non-compliance with any of the requirements of section 13 or that the opinion of the Minister under section 13 (2) was unreasonable or vitiated by an error of law.

(4) The Court may, instead of setting aside the special management order, make an order varying or amending that order in the manner it considers appropriate if the Court is satisfied that—

(a) there has been non-compliance with any of the requirements of section 13 or that the opinion of the Minister under section 13 (2) was unreasonable or vitiated by an error of law,

(b) it would be appropriate to do so, having regard to any report referred to in subsection 14 (3), and

(c) to do so is necessary to secure the achievement of the purpose specified in the special management order or any other purpose of this Act.

(5) An order under subsection (4) is, from the date of making it, effective to vary or amend the special management order without prejudice to the validity of anything previously done under the special management order.

(6) If the Court sets aside a special management order, the appointment of the special manager shall be taken to have been terminated. However—

(a) he or she remains entitled to be paid, out of the assets of the relevant institution, his or her costs, expenses and remuneration, and

(b) the termination does not render invalid anything done by the special manager under the special management order.

F22[(7) Where, instead of making an order undersubsection (3)setting aside a special management order, or an order undersubsection (4)varying or amending a special management order, the Court, on application undersubsection (1)makes an order refusing to set aside a special management order, the special management order shall be taken to have been effective as if the application under this section had not been made.

(8) The Court, in considering the order it wishes to make under this section may where the applicant is a member of a relevant institution, have regard to—

(a) the date on which the applicant became a member of that institution, or increased or decreased the number of shares that the applicant held in that institution, and

(b) the value of the shares acquired by or disposed of by the member—

(i) as at the date or dates on which the shares were acquired or disposed of, as the case may be, and

(ii) as at the date on which the special management order concerned was made.]

17. Terms of appointment.

17.— (1) The period of the special management of a relevant institution is 6 months from the making of the relevant special management order (whether that order is made under subsection (2) or (5) of section 14).

(2) The terms and conditions of appointment of a special manager (other than the period of his or her appointment) are as set out in the relevant special management order.

18. Remuneration, etc., of special managers.

18.— (1) A special management order shall fix the basis of the calculation of the costs, expenses and remuneration payable to the special manager, and may do so in respect of work done before the making of the special management order.

(2) A special manager is entitled to be paid his or her costs, expenses and remuneration, and to retain the amount of those costs, expenses and remuneration, out of the revenue of the business of the relevant institution or the proceeds of the realisation of the assets (including investments) or other funds available to the relevant institution.

19. Resignation and vacancy in office, etc.

19.— (1) A special manager may resign by giving 2 months’ written notice addressed to the Minister.

(2) The Minister may remove the special manager for any reason.

(3) If a special manager resigns or is removed, the Minister may appoint another special manager by instrument in writing.

(4) The resignation or removal of a special manager does not terminate the special management of the relevant institution concerned.

20. Functions of special managers.

20.— (1) The special manager of a relevant institution shall take over the management of the business of the relevant institution and shall carry on that business as a going concern with a view to preserving and restoring the financial position of the relevant institution, or the whole or any part of its business, in a manner consistent with the achievement of the purposes of this Act.

(2) Without limiting the generality of subsection (1), the special manager of a relevant institution has the power to acquire and dispose of any asset or all the assets, and any liability, of that institution.

(3) A reference in subsection (2) to disposing of an asset or a liability includes selling or otherwise transferring, and creating a security or equitable interest in, the asset or liability.

(4) The special manager of a relevant institution has, in relation to the relevant institution, all powers necessary for or incidental to the special manager’s functions, including the sole authority over and direction of all officers and employees of the relevant institution.

(5) The special manager of a relevant institution shall take such steps as he or she determines to be appropriate to remedy the matters that led to the making of a special management order in relation to the relevant institution, and for that purpose may, unless the special management order provides otherwise, appoint advisors to the relevant institution.

(6) A special manager may, with the consent of the Minister and the Governor, substitute his or her own decision for any decision that would otherwise be made by the shareholders, and if he or she does so, the decision shall be taken to be the decision of the shareholders.

(7) The appointment of a special manager of a relevant institution does not relieve the relevant institution of any obligation to comply with any applicable laws and regulatory requirements and with any directions given by the Bank or the Minister to the relevant institution under any enactment.

(8) The special manager of a relevant institution shall provide such reports and other information to the Bank and the Minister as the Bank or the Minister requests, notwithstanding any other enactment or any rule of law, code of practice, agreement, duty or obligation to any person. The obligation under this subsection is in addition to the obligations of the relevant institution to provide information and make returns to the Bank or the Minister.

21. Performance of functions of special managers.

21.— (1) A special manager may perform his or her functions with the assistance of persons appointed or employed by him or her for that purpose.

(2) A special manager may, with the consent of the Minister, apply to the Court to determine any question arising in the course of the special management.

22. Effect of appointment of special manager.

22.— (1) While a relevant institution is under special management—

(a) all functions which, but for this paragraph, would be vested in the directors of the relevant institution (whether by virtue of its memorandum of association or articles of association or otherwise) vest in the special manager,

(b) no proceedings for its winding up shall be commenced without the prior consent in writing of the Minister,

(d) no petition can be presented for the appointment of an examiner to the relevant institution or to a related company (within the meaning of section 4(5) of the Companies (Amendment) Act 1990) without the prior consent in writing of the Minister,

(e) no inspector can be appointed or an inquiry commenced under the Companies Act 1990 without the prior consent in writing of the Minister,

(f) subject to subsection (2), no receiver over any part of the property of the relevant institution shall be appointed without the prior consent in writing of the Minister,

(g) subject to subsection (2), no enforcement (whether by attachment, sequestration, distress or execution) of any judgment or order shall be put into force against any part of the property of the relevant institution without the prior consent in writing of the Minister, unless the party seeking to do so is the Minister,

(h) subject to subsection (2), where any claim against a relevant institution is secured by security affecting the whole or any part of the assets of the relevant institution, any person other than the Minister who wishes to realise the whole or any part of that security shall give written notice to the Minister 90 days (or a shorter period to which the Minister agrees) before such realisation, and

(i) if the special manager so elects, the powers of the relevant institution exercisable by a general meeting of the relevant institution are exercisable only by the special manager and subject to the prior consent in writing of the Minister.

(2) Paragraphs (f), (g) and (h) of subsection (1) do not apply to the Bank, the European Central Bank or any other national central bank within the Eurosystem.

(3) Except as provided by this Act, the business of a relevant institution under special management shall continue without interruption as a going concern, and no agreement (including a contract of employment or service), policy, transaction, bank account or bank mandate, right, title, claim, debt, proceeding or obligation of the relevant institution or right, claim or proceeding against it is avoided, cancelled, stayed or otherwise affected by reason only of the appointment of the special manager.

(4) While a relevant institution is under special management—

(a) the relevant institution shall not convene or hold any general meeting unless the special manager so directs,

(b) the rights and powers of shareholders and members under any enactment or relevant agreement stand suspended and are not exercisable,

(d) no derivative action may be brought in respect of the relevant institution.

23. Powers of special manager to remove officers, employees and others.

23.— (1) The special manager of a relevant institution may, with the consent of the Minister, and shall, if so directed by the Minister, remove any person from—

(a) a position of director, secretary or other officer of the relevant institution or any of its subsidiaries, or

(b) any of the following positions:

(i) a position of employment with the relevant institution or any of its subsidiaries;

(ii) an executive position and any such position held by virtue of being a director or secretary of the relevant institution or any of its subsidiaries;

(iii) a consultancy to the relevant institution or any of its subsidiaries.

(2) The removal of a person by virtue of subsection (1)—

(a) has effect without the need for any notice being given, meeting being called, resolution being passed or consent being obtained, and

(b) may be expressed to take effect immediately and, if so expressed, has that effect.

(3) Nothing in subsection (1) or (2) deprives a person of any right to claim compensation or damages from the relevant institution for the loss of his or her office or appointment. However—

(a) a court, tribunal or rights commissioner may not grant any remedy that would have the effect of preventing or restraining the special manager from exercising the special manager’s powers under this section, and

(b) a court, tribunal or rights commissioner may not make an order under the Unfair Dismissals Acts 1977 to 2007 for the reinstatement or re-engagement of such a person.

24. Relationship between special managers and directors.

24.— (1) The special manager appointed to a relevant institution shall—

(a) determine the role (if any) of the directors and officers of the relevant institution and its subsidiaries during the special management, and

(b) determine the remuneration (if any) to be paid to the directors and officers of the relevant institution and its subsidiaries during the special management.

(2) A determination of a special manager under paragraph (a) or (b) of subsection (1) is binding on the relevant institution or its subsidiaries (as the case may be) and the directors of the relevant institution or its subsidiaries.

(3) A director or other officer of a relevant institution or a subsidiary of a relevant institution that is under special management remains bound to discharge his or her duties and obligations under any enactment or rule of law except to any extent that he or she is relieved of that duty or obligation by the special manager or by a provision of this Act.

(4) Nothing in this section or any determination under it has the effect of—

(a) rendering lawful any contravention of any enactment or rule of law that took place before the commencement of a special management or takes place after the end of a special management,

(b) relieving any person from any obligation—

(i) to comply at any time, with any such enactment or rule of law, or

(ii) to fulfil any duty at any time, or

(c) precluding any proceedings brought or to be brought in relation to a contravention, or the breach of an obligation, referred to in paragraph (a) or (b).

(5) Nothing in this section affects the duty of directors under section 48 or authorises the special manager to do so.

25. Special manager not to be director, etc.

25.— A special manager of a relevant institution shall not be taken to be a shadow director (within the meaning given by section 27(1) of the Companies Act 1990) nor what is known as a de facto director of the relevant institution or any of its subsidiaries.

26. Extension of special management.

26.— The special management of a relevant institution may be extended in accordance with the procedure set out in sections 13 and 14. Section 16 applies to any order extending the special management.

27. Termination of special management.

27.— (1) The special management of a relevant institution terminates—

(a) at the end of the period of 6 months referred to in section 17(1),

(b) on the making of an order for the winding up of the relevant institution,

(c) on the making of an order under the Companies (Amendment) Act 1990 appointing an examiner to the relevant institution, or

(d) if the Minister so orders.

(2) The Minister shall lay a copy of an order under subsection (1)(d) before each House of the Oireachtas.

PART 4 Subordinated liabilities

28. Proposed subordinated liabilities orders.

28.— (1) Subject to subsections (2)and(5)theMinister may make a proposed subordinated liabilities order in relation to the subordinated liabilities of a relevant institution to which the Minister has provided or intends to provide financial support under the Act of 2008 only if—

(a) the Minister has consulted with the Governor, and

F23[(b) after so consulting, the Minister is of the opinion that the making of a subordinated liabilities order in the terms of the proposed subordinated liabilities order—

(i) is necessary to secure the achievement of a purpose of this Act specified in the proposed subordinated liabilities order, or

(ii) is necessary for the preservation or restoration of the financial position of the relevant institution,

even though the making of that order would have the consequence of affecting (including reducing) the rights enjoyed by subordinated creditors before the order, but nothing in this subsection shall be taken as requiring the Minister to consider the possible adverse consequences of the order on the interests of a particular creditor or class of creditors of the relevant institution or to consider any submission made by a creditor on behalf of that creditor, a class of creditors or creditors generally.]

F24[(1A) If the Minister makes a proposed subordinated liabilities order in relation to a relevant institution and the intention of it or part of it is the preservation or restoration of the financial position of a credit institution, the Minister shall declare in the proposed subordinated liabilities order that the proposed subordinated liabilities order or part is made with that intention, in accordance with the CIWUD Directive.]

(2) In considering whether to make a proposed subordinated liabilities order in relation to a relevant institution the Minister shall have regard to such of the following matters as the Minister considers appropriate:

(a) the amount of the indebtedness of that institution to its subordinated creditors relative to its assets;

(b) the extent and nature of financial support provided or to be provided to that institution by the Minister under the Act of 2008 or otherwise;

(c) without prejudice to paragraph (b), the extent to which the State has, in particular, provided financial support by way of equity investment (or equivalent) in that institution;

(d) the quantum of the financial support relative to that institution’s balance sheet;

(e) the viability of that institution in the absence of that financial support;

(f) the present and likely future ability of that institution to raise equity capital from market sources;

(g) the likely extent to which the subordinated creditors would be repaid amounts owing to them in a winding up of that institution in the absence of such financial support;

F25[(h) the market value of the subordinated liabilities concerned;

(i) the effectiveness or likely effectiveness of liability management exercises of that institution in respect of its subordinated liabilities;

(j) the extent to which subordinated creditors would, if the subordinated liabilities order were made, be more likely to voluntarily agree to any of the matters referred to insubsection (4).]

(3) A proposed subordinated liabilities order may make provision for—

(a) any one or more or all of the matters referred to in subsection (4), and

(b) the granting of a shareholding in the relevant institution to the subordinated creditors affected by the order or any class of them.

(4) The matters referred to in subsection (3) are the following:

(a) the postponement, termination, suspension or other modification of specific rights, liabilities, terms and obligations associated with all or any of such subordinated liabilities including (without limiting the generality of the foregoing) any or all of the following rights, terms and obligations:

(i) the payment of interest;

(ii) the repayment of principal;

(iii) what constitutes an event of default;

(iv) collective action provisions;

(v) the timing of obligations;

(vi) the due date;

(vii) the applicable law;

(viii) the right to declare, specify or determine an event of default;

(ix) any right to enforce payment, whether by winding-up or otherwise;

(b) requiring the relevant institution to acquire those liabilities for a specified consideration, including a consideration calculated on the assumption that the State—

(i) has not provided and will not provide financial support to that institution, and

(ii) has not made and will not make any investment in that institution.

(5) Unless the relevant institution concerned consents to the making of a subordinated liabilities order in the terms of the proposed order, or exceptional circumstances (within the meaning of subsection (6)) exist, the Minister shall also, before making a proposed subordinated liabilities order—

(a) deliver a written notice to the relevant institution setting out the terms of the subordinated liabilities order, accompanied by a summary of the reasons why the Minister is of the opinion that such an order is necessary,

(b) afford the relevant institution 48 hours, or a shorter period on which the Minister and the relevant institution agree, in which to make written submissions to the Minister, and

(6) Exceptional circumstances for the purposes of subsection (5) exist where—

(b) there is an imminent threat to the stability of the financial system in the State and the Minister is of the opinion that compliance with subsection (5) would result in significant damage to the stability of that financial system, or

(c) the Minister has reasonable grounds for believing that confidentiality with regard to the subordinated liabilities order, or the possibility of the making of a subordinated liabilities order, would not be maintained and that the breach of such confidentiality would have significant adverse consequences.

(7) The power to make an order in relation to any of the matters referred to in subsection (4) is independent of, and may be exercised independently of, the power to make such an order in relation to any other such matter.

29. Subordinated liabilities orders.

29.— (1) As soon as may be after completion in relation to a proposed subordinated liabilities order of the procedures required by section 28, the Minister shall apply ex parte to the Court for an order (in this Act called a “subordinated liabilities order”) in the terms of the proposed subordinated liabilities order.

(2) The Court shall, when hearing an ex parte application under subsection (1), if satisfied that the requirements of section 28 have been complied with and that the opinion of the Minister under section 28(1)(b) was reasonable and was not vitiated by any error of law, make a subordinated liabilities order in the terms of the proposed subordinated liabilities order (or those terms as varied after consideration of any submission referred to in section 28(5)(c)).

F26[(2A) If in a proposed subordinated liabilities order the Minister has declared the intention of preserving or restoring the financial position of a credit institution, and the Court is satisfied that the Minister made the proposed subordinated liabilities order or part of it with that intention, the Court shall declare in the relevant subordinated liabilities order that the subordinated liabilities order or the relevant part of it is a reorganisation measure for the purposes of the CIWUD Directive.]

(3) A report of the Bank relating to—

(a) the financial state of the relevant institution concerned at a particular time or times,

(b) the extent of the State’s support of the relevant institution,

(c) the amount of recovery that would have been made at a particular time or times by subordinated creditors of the relevant institution without State support,

(d) the amount of recovery that would have been made at a particular time or times by subordinated creditors of the relevant institution if it had been wound up or had been unable to continue as a going concern,

(e) any of the matters referred to in section 28 (2),

is admissible in evidence at the hearing of the application, whether or not prepared for the purposes of the application.

(4) The Court may make a subordinated liabilities order on terms varied or amended from those in the proposed subordinated liabilities order only if the Court is satisfied that—

(a) there has been non-compliance with any of the requirements of section 28 or that the opinion of the Minister under section 28 (1) (b) was unreasonable or vitiated by an error of law,

(b) it would be appropriate to do so, having regard to any report referred to in subsection (3), and

(c) to do so is necessary to secure the achievement of the purpose specified in the proposed subordinated liabilities order.

(5) F27[…]

F28[(6) A subordinated liabilities order is effective from the date on which the requirements ofsection 29A(2)(a)and(b)are met.

(7) If one of the consequences of a subordinated liabilities order is that it terminates or reduces the liability of a relevant institution to its subordinated creditors, that termination or reduction shall be taken, for all purposes, as having occurred immediately on the subordinated liabilities order’s becoming effective undersubsection (6).]

29A. F29[Publication of subordinated liabilities orders.

29A.—(1) The Minister shall, as soon as practicable after a subordinated liabilities order is made—

(a) serve a copy of the subordinated liabilities order on the relevant institution concerned, and

(b) publish the order in 2 newspapers circulating generally in the State.

(2) Without delay after the service of the copy of the subordinated liabilities order, the relevant institution concerned shall take all reasonable measures to ensure that the subordinated creditors concerned are made aware of the order, including, without limiting the generality of the foregoing—

(a) making an announcement that relates to the existence of the subordinated liabilities order and its effect to a regulatory news service generally used by relevant institutions in the State whose securities are traded from time to time on a financial market (whether a regulated market or not), to make announcements to such markets,

(b) providing a copy of the subordinated liabilities order to the regulatory news service referred to inparagraph (a), and

(c) providing a copy of the announcement, and of the subordinated liabilities order, to each clearing house through which the subordinated creditors concerned would, in the ordinary course, acquire or settle subordinated liabilities held by them.]

30. Application to vary subordinated liabilities order.

30.— The Minister may apply—

(a) on notice, or

(b) in urgent circumstances, ex parte,

to the Court to vary a subordinated liabilities order if the Minister is of the opinion that the variation is necessary to secure the achievement of a purpose of this Act.

31. Application to set aside subordinated liabilities order.

31.— (1) The relevant institution in relation to which a subordinated liabilities order is made or a subordinated creditor of that institution may apply to the Court by motion on notice grounded on affidavit, F30[not later than 14 days after the requirements ofsection 29A(2)(a)and(b)have been met, for the setting aside of the subordinated liabilities order or, in the case of a subordinated creditor, of the part or parts of that order that affect the subordinated creditor concerned].

F31[(2) The Court shall give such priority to an application undersubsection (1)as is necessary in the circumstances, and may give such directions as it considers appropriate in the circumstances—

(a) with regard to the hearing of the application, or

(b) with regard to a matter that arises during the period beginning with the subordinated liabilities order and ending with the order of the Court under this section.]

(3) On an application under subsection (1), the Court shall set aside the subordinated liabilities order only if the Court is satisfied that there has been non-compliance with any of the requirements of section 28 or that the opinion of the Minister under section 28 (1) (b) was unreasonable or vitiated by an error of law.

(4) The Court may, instead of setting aside the subordinated liabilities order, make an order varying or amending that order in the manner it considers appropriate F32[(including varying the amounts owing to subordinated creditors or one or more classes of subordinated creditors)] if the Court is satisfied that—

(a) there has been non-compliance with any of the requirements of section 28 or that the opinion of the Minister under section 28(1)(b) was unreasonable or vitiated by an error of law,

(b) it would be appropriate to do so, having regard to any report referred to in section 29(3), and

(c) to do so is necessary for the purpose specified in the subordinated liabilities order or any other purpose of this Act.

F33[(5) On application undersubsection (1)—

(a) if an order is made setting aside the subordinated liabilities order, the effect of the order under this section shall be to set aside the subordinated liabilities order concerned to the extent and on the terms that the Court directs, and

(b) if an order is made refusing to set aside the subordinated liabilities order and the Court does not make an order under subsection (4), then the subordinated liabilities order shall continue to be effective.]

F34[(6) If any order is made undersubsection (4)to vary or amend a subordinated liabilities order, the subordinated liabilities order as varied or amended shall be taken as being effective as if the terms and conditions as varied were the terms and conditions of the original subordinated liabilities order but otherwise as if the application under this section had not been made.]

F35[(7) The Court, in considering the order it wishes to make under this section may, where the applicant is a subordinated creditor of a relevant institution, have regard to—

(a) the date or dates on which the applicant acquired or disposed of the subordinated liabilities of the relevant institution, and

(b) the market value of those subordinated liabilities—

(i) as at the date or dates referred to inparagraph (a), and

(ii) as at the date on which the subordinated liabilities order concerned was made.

(8) Where an application undersubsection (1)is made by a subordinated creditor for the setting aside of the part or parts of the subordinated liabilities order that affect him or her, or where the Court makes an order setting aside, or amending or varying, a part or parts only of the subordinated liabilities order, a reference in this section to a subordinated liabilities order shall be read as a reference to that part or those parts only of that subordinated liabilities order.]

32. Certain rights of subordinated creditors not exercisable.

32.— (1) No proceedings may be instituted and no petition to wind up may be brought by a subordinated creditor of a relevant institution in relation to which a subordinated liabilities order has been made in relation to the relevant institution based upon a failure by that institution to honour the terms of a subordinated liability if those terms have been modified by the subordinated liabilities order and that institution is in compliance with the terms as so modified.

(2) No subordinated creditor of a relevant institution in relation to which a subordinated liabilities order has been made may exercise or claim any right of set-off in respect of any amount (being an amount arising under or in connection with the relevant subordinated liabilities) owed to the subordinated creditor by the relevant institution.

PART 5 Transfer of assets and liabilities

33. Proposed transfer orders.

33.— (1) Subject to subsections (2) and (4), the Minister may make a proposed transfer order in relation to the transfer of assets or liabilities of a relevant institution.

F36[(2) The Minister may make a proposed transfer order only if the Minister, having consulted with the Governor, is of the opinion that, having regard to any adverse consequences that may arise as a result of the transfer order, in relation to the interests generally of the creditors of the transferor or, where the transferor is a subsidiary or holding company, in relation to the interests generally of the creditors of the transferor or the relevant institution concerned, making a transfer order in the terms of the proposed transfer order is necessary to secure the achievement of a purpose of this Act specified in the proposed transfer order.

(2A) Nothing insubsection (2)requires the Minister to consider the possible adverse consequences of the transfer order concerned on the interests of a particular creditor or class of creditors of the transferor or relevant institution, as the case may be, or to consider any submission made by a creditor on behalf of that creditor, a class of creditors or creditors generally.]

(3) If the Minister makes a proposed transfer order in relation to a relevant institution and the intention of it or part of it is the preservation or restoration of the financial position of a credit institution, the Minister shall declare in the proposed transfer order that the proposed transfer order or part is made with that intention, in accordance with the CIWUD Directive.

(4) Unless the relevant institution concerned consents to the making of a transfer order in the terms of the proposed transfer order, or exceptional circumstances (within the meaning of subsection (5)) exist, the Minister shall also, before making a proposed transfer order—

(a) deliver a written notice to the relevant institution describing the terms of the proposed transfer order, accompanied by a summary of the reasons why the Minister is of the opinion that such an order is necessary,

(b) afford the relevant institution 48 hours, or a shorter period on which the Minister and the relevant institution agree, in which to make written submissions to the Minister, and

F37[(4A) If the Minister proposes that the transfer order or any term of it have immediate effect, the Minister shall state, in the written notice given undersubsection (4)(a), that fact and the reasons why the order or term should have that effect.]

(5) Exceptional circumstances for the purposes of subsection (4) exist where—

(c) the Minister has reasonable grounds for believing that confidentiality with regard to the transfer order, or the possibility of the making of a transfer order, would not be maintained and that the breach of such confidentiality would have significant adverse consequences.

(6) A proposed transfer order—

(a) shall contain such terms and conditions as the Minister proposes relating to the proposed transfer, including the specification of a date by which or a period within which the institution is required to comply, and

(b) may include such incidental, consequential and supplemental provisions as the Minister considers appropriate for implementing the transfer and securing that it be fully and effectively carried out, including provisions for substituting the name of the transferee for that of the transferor or otherwise adapting references to the transferor in any instrument made under an Act, and may provide for such transitional matters, including the sharing of assets and other contracts, as the Minister considers appropriate.

33A. F38[Relevant institution not to dispose of assets, liabilities.

33A.—(1) Unless the Minister provides prior written consent, a relevant institution shall not dispose of any asset or liability which is to be transferred under a transfer order, except in the ordinary course of its business, during the period beginning with the delivery of the written notice undersubsection (4)ofsection 33, or the date on which the relevant institution otherwise becomes aware of the proposed transfer order as part of the process of seeking its consent under that subsection, whichever is the earlier, and ending on the date of effect of the transfer order undersection 34(7).

(2) The officers and employees of a relevant institution shall comply withsubsection (1).

(3) If the Minister is of the opinion that a relevant institution is in breach ofsubsection (1)or has taken steps that would likely lead to such a breach, the Minister may applyex parteto the Court for an order compelling compliance with that subsection.]

34. Transfer orders.

34.— (1) As soon as may be after completion in relation to a proposed transfer order of the procedures required by section 33, the Minister shall apply ex parte to the Court for an order (in this Act called a “transfer order”) in the terms of the proposed transfer order.

(2) The Court, when hearing an ex parte application under subsection (1), shall, if satisfied that the requirements of section 33 have been complied with and that the opinion of the Minister under section 33 (2) was reasonable and was not vitiated by any error of law, make a transfer order in the terms of the proposed transfer order (or those terms as varied after consideration of any submission referred to in section 33 (4) (c)).

(4) If in a proposed transfer order the Minister has declared the intention of preserving or restoring the financial position of a credit institution, and the Court is satisfied that the Minister made the proposed transfer order or part of it with that intention, the Court shall declare in the relevant transfer order that the transfer order or the relevant part of it is a reorganisation measure for the purposes of the CIWUD Directive.

(5) The Court may make a transfer order on terms varied or amended from those in the proposed transfer order only if the Court is satisfied that—

(a) there has been non-compliance with any of the requirements of section 33 or that the opinion of the Minister under section 33 (2) was unreasonable or vitiated by an error of law,

(b) it would be appropriate to do so, having regard to any report referred to in subsection (3), and

(6) F39[…]

F40[(7) A transfer order has effect—

(a) if there is an application made undersection 36—

(i) if the Court makes an order undersection 36and makes an order as to the date of effect, at that date,

(ii) if the Court makes an order undersection 36and does not make an order as to the date of effect, the date of that order made undersection 36, or

(iii) if the Court does not make an order under section 36, 14 days after the publication of the order undersection 34A(1)(b),

(b) if there is no application made undersection 36—

(i) immediately, to the extent that the Court so orders, or

(ii) if the Court does not make an order as to the date of effect, 14 days after the publication of the order undersection 34A(1)(b).]

34A. F41[Publication of transfer orders.

34A.—(1) The Minister shall, as soon as practicable after a transfer order is made—

(a) serve a copy of the transfer order on the relevant institution concerned, and

(b) publish the order in 2 newspapers circulating generally in the State.

(2) In a particular case, the Minister may, if he or she thinks it necessary to do so, publish a transfer order by an additional means or in an additional place.

(3) Without delay after the service of the copy of the transfer order, the relevant institution shall take all reasonable measures to ensure that its members are made aware of the order, including, without limiting the generality of the foregoing—

(a) where the shares of the relevant institution are traded from time to time on a financial market (whether a regulated market or not), making an announcement that relates to the existence of the transfer order and its effect, to a regulatory news service generally used by relevant institutions in the State for the purposes of announcements to such markets, and

(b) providing a copy of the transfer order to the regulatory news service referred to inparagraph (a).]

35. Application to vary transfer order.

35.— The Minister may apply—

(a) on notice, or

(b) in urgent circumstances, ex parte,

to the Court to vary a transfer order if the Minister is of the opinion that the variation is necessary to secure the achievement of a purpose of this Act.

36. Application to set aside transfer order.

36.— (1) The relevant institution in relation to which a transfer order is made or a member of that institution may apply to the Court by motion on notice grounded on affidavit, F42[not later than 14 days after the publication, in accordance withsubsection (1)(b)ofsection 34A, of a transfer order,] for the setting aside of the transfer order.

F43[(2) The Court shall give such priority to an application undersubsection (1)as is necessary in the circumstances, and may give such directions as it considers appropriate in the circumstances—

(a) with regard to the hearing of the application, or

(b) with regard to a matter that arises during the period beginning with the transfer order and ending with the order of the Court under this section.]

(3) On an application under subsection (1), the Court shall set aside the transfer order only if the Court is satisfied that there has been non-compliance with any of the requirements of section 33 or that the opinion of the Minister under section 33 (2) was unreasonable or vitiated by an error of law.

(4) The Court may, instead of setting aside the transfer order, make an order varying or amending that order in the manner it considers appropriate if the Court is satisfied that—

(a) there has been non-compliance with any of the requirements of section 33 or that the opinion of the Minister under section 33 (2) was unreasonable or vitiated by an error of law,

(b) it would be appropriate to do so, having regard to any report referred to in section 34 (3), and

(c) to do so is necessary to secure the achievement of the purpose specified in the transfer order or any other purpose of this Act.

F44[(5) If the Court sets aside a transfer order, no further assets or liabilities shall be transferred as a consequence of the transfer order.

(6) The setting aside of a transfer order does not affect the rights of a transferee or the transferee’s title to any asset or liability so transferred before that setting-aside.

(7) If a transfer order is set aside and assets or liabilities have been transferred pursuant to it, the transferor is not entitled to any payment other than the consideration paid pursuant to the transfer order.

(8) If a variation or amendment of a transfer order made under this section would, but for this subsection, have the effect of setting aside a disposition of an asset or liability,subsections (5)to(7)apply with any necessary modifications.

(9) The Court, in considering the order it wishes to make under this section, may, where the applicant is a member of a relevant institution, have regard to—

(a) the date on which the applicant became a member of that institution, or increased or decreased the number of shares that the applicant held in that institution, and

(b) the value of the shares acquired by or disposed of by the member—

(i) as at the date or dates on which the shares were acquired or disposed of, as the case may be, and

(ii) as at the date on which the transfer order concerned was made.]

37. Content of transfer order.

37.— (1) A transfer order shall specify the following:

(a) the name of the transferee;

(b) any term or condition imposed on the transfer, or to which the transfer is subject;

(d) any consideration to be paid by the transferee, or a means of determining that consideration.

(2) For the purposes of paragraph (1) (c), a class or kind may be specified by means of any common characteristic of the class or kind.

(3) For the purposes of paragraph (1) (d), a transfer order may specify that a named person or a person in a class of persons is to determine the consideration.

(4) A transfer order shall not name a person as transferee unless that person has agreed to accept the transfer on the terms set out in the order.

(5) F45[…]

(6) A transfer order may relate to the transfer of—

(a) all or any specified part of the assets of the transferor,

(b) all, or any specified part of the liabilities of the transferor, or

(7) Where a transfer order transfers a netting agreement (within the meaning of the Netting of Financial Contracts Act 1995) or a F46[financial collateral arrangement (within the meaning of Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002^5on financial collateral arrangements, as amended by Directive 2009/44/EC of the European Parliament and of the Council of 6 May 2009^6, and of the European Communities (Financial Collateral Arrangements) Regulations 2010 (S.I. No. 626 of 2010))], the transfer order shall transfer the whole of that agreement or arrangement.

(8) Notwithstanding any enactment or rule of law, a cause of action capable of being exercised by the transferor may be transferred to the transferee by a transfer order.

(9) A transfer order may include such incidental, consequential and supplemental provisions as the Court considers appropriate for implementing the transfer and securing that it be fully and effectively carried out, including provisions for substituting the name of the transferee for that of the transferor or otherwise adapting references to the transferor in any instrument made under an Act, and may provide for such transitional matters, including the sharing of assets and other contracts, as the Court considers appropriate.

38. Financial incentive to transferee.

38.— (1) The Minister may directly or indirectly provide a financial incentive to any person to become a transferee on such terms and subject to such conditions as the Minister considers necessary or appropriate.

(2) For the purposes of subsection (1) “financial incentive” includes a payment, a loan, a guarantee, an exchange of assets and any other kind of financial accommodation or assistance, including financial support.

(3) The Minister may enter into transactions of a normal banking nature in connection with or related to the provision of a financial incentive under this section.

F47[(3A) Where the Minister provides a financial incentive undersubsection (1)which is in the form of a payment or gives rise to a payment, the payment shall be made from the Central Fund or the growing produce thereof.]

(4) Subject to subsection (5), the amount of any financial incentive provided under this section is a debt due and owing to the State by the transferor and may be recovered as a simple contract debt in any court of competent jurisdiction.

(5) Where a transfer order is set aside in whole or in part—

(a) in the case where a part of any financial incentive can be identified as relating to assets or liabilities that are transferred back to the transferor under section 36 (5) (a) (i), an amount equal to that part, and

(b) in any other case, an amount equal to the percentage of the amount of financial incentive equivalent to the percentage of the value of the total assets and liabilities the subject of the transfer order that is represented by the value of the assets, liabilities and interests that are transferred back to the transferor under that section,

becomes immediately repayable to the Minister, is a debt due and owing to the State by the transferee and may be recovered as a simple contract debt in any court of competent jurisdiction.

39. Effect of transfer order — general.

39.— (1) A transfer order has effect subject to any term or condition imposed in the order.

(2) On the date specified in a transfer order, all the assets and liabilities specified in the order (whether located in the State or not) are transferred to the transferee.

(3) On and after the transfer of an asset or liability under a transfer order—

(a) the transferee has the same rights (including priorities) and obligations in respect of those assets and liabilities as the transferor had immediately before the transfer, and

(b) the transferor no longer has those rights and obligations.

(4) In particular, unless the transfer order specifies otherwise, and without limiting the generality of subsection (3)—

(a) any account included in the transfer is transferred to the transferee on the date of the transfer and becomes, on and after that date, an account between the transferee and the account holder with the same rights and subject to the same rights and obligations (including rights of set-off) as would have been applicable before the transfer,

(b) any order, instruction, direction, mandate or authority given, whether before or after the transfer, by the account holder in relation to such an account or any obligation entered into by the transferor in relation to any person and subsisting on that date, has effect after the transfer of the account,

(c) any amount owing on such an account by the account holder to the transferor on that date becomes due and payable by the account holder to the transferee, and any amount owing on such an account by the transferor to the account holder on that date becomes due and payable by the transferee to the account holder,

(d) all property (whether real or personal, and including choses in action) specified in the transfer order transfers to the transferee,

(e) all contracts, agreements, conveyances, mortgages, deeds, leases, licences, undertakings, notices and other instruments (whether or not in writing) entered into by, made with, given to or by, or addressed to the transferor (whether alone or with another person) relating to property referred to in paragraph (d) are, to the extent that they were previously binding on and enforceable by, against or in favour of the transferor, binding on and enforceable by, against, or in favour of the transferee as fully and effectually in every respect as if the transferee had been the person by whom they were entered into, with whom they were made, or to or by whom they were given or addressed (as the case may be),

(f) security held by the transferor in connection with the assets and liabilities transferred as security for the payment of the debts or liabilities (whether present or future and whether actual or contingent) of any person are transferred to the transferee as security for the payment of such debts and liabilities to the transferee,

(g) where the amount secured by such security includes future advances to, or liabilities of, a person, the security becomes available to the transferee as security for future advances to that person by, and future liabilities of that person to, the transferee to the extent to which future advances by or liabilities to the transferor were secured by it immediately before the date of transfer,

(h) the transferee, in relation to any security transferred to it and the amount secured by that security in accordance with the terms of the security, becomes entitled to the same rights and priorities and subject to the same obligations as those to which the transferor would have been F48[entitled and subject if] the security had continued to be held by the transferor,

(i) except to any extent that the relevant transfer order provides otherwise—

(i) agreements made or other things done by or in relation to the transferor shall be treated, so far as may be necessary for the purposes of, in connection with or in consequence of the transfer, as made or done by or in relation to the transferee (as the case may be), and

(ii) references to the transferor, or to any officer or employee of the transferor, in instruments or documents relating to the assets and liabilities transferred have effect as if they were references to the transferee, or to any officer or employee of the transferee (as the case may be),

and

(j) where, immediately before the transfer date, any legal proceedings are pending to which the transferor is a party and the proceedings have reference to the assets and liabilities transferred, the proceedings continue, and the name of the transferee is substituted (to any extent necessary) for that of the transferor.

(5) Where the transferor is F49[a building society] and a share account is included in the transfer of assets and liabilities—

(a) where the transferee is also F49[a building society]—

(i) if the transferee has agreed that the account holders of the transferor shall have membership rights in the transferee, on and after that transfer the holder of the transferred share account has such rights in the transferee, and

(ii) in any other case, on that transfer the account becomes a deposit account and the account holder has no membership rights in the transferee,

and

(b) in any other case, on that transfer the account becomes a deposit account with the transferee.

F50[(5A) If—

(a) the transferor is a building society,

(b) a share account is included in the transfer of assets and liabilities, and

the holder of that account continues to have the membership rights in the transferor that he or she had before the transfer, including (without limitation) voting rights and rights to participate in any surplus on a winding-up.

(5B)Subsection (5A)has effect notwithstanding anything in—

(a) theBuilding Societies Act 1989, or

(b) the memorandum of association or rules of the transferor.]

F51[(6) The transfer of assets and liabilities under a transfer order takes effect notwithstanding—

(a) any duty or obligation to any person that would otherwise prevent or restrict the transfer,

(b) any provision of any enactment, rule of law, code of practice or agreement providing for or requiring—

(i) notice to any person,

(ii) the consent, approval or concurrence of any person, or

(iii) any formality such as registration,

(d) any code of practice made under an enactment,

(e) the listing rules of a regulated market or the rules of any other market on which the shares of the transferor are traded,

(f) the memorandum of association or articles of association of the transferor, or

(g) any agreement which the transferor is a party to, is bound by, or has an interest in,

except to any extent to which the transfer order expressly provides otherwise.]

40. Effect of transfer order in relation to securities.

40.— (1) On and after the transfer of assets and liabilities under a transfer order, in relation to property referred to in paragraph (d) or (e) of section 39(4) or a security referred to in paragraph (f) of that section, transferred by the order—

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