Credit Institutions (Stabilisation) Act 2010

(a) notwithstanding any provision of an Act listed in subsection (2) or any other Act that provides for the registration of assets or security, or any details of assets or security, a transferee is not required to become registered as owner of the security,

(b) notwithstanding sections 62 and 64 of the Registration of Title Act 1964, a transferee has, in relation to any charge that is or is part of such a security, the powers of a mortgagee under a mortgage by deed, even though it is not registered as owner of the charge,

(c) the transferee has the powers and rights conferred on the registered owner of a charge by the Registration of Title Act 1964, and

(d) where the transfer order effects an extension of or in relation to the security so as to include future advances by or future liabilities to the transferee, the extension need not be registered under any Act listed in subsection (2) under which it would otherwise be required to be registered, but operates for the purposes of those Acts as if made by deed duly registered under that Act on the date of transfer.

(2) The Acts referred to in paragraphs (a) and (d) of subsection (1) are the following:

(a) the Bills of Sale (Ireland) Acts 1879 and 1883;

(b) the Agricultural Co-operative Societies (Debentures) Act 1934;

(c) the Companies Act 1963;

(d) the Registration of Deeds and Title Acts 1964 and 2006;

(e) the Agricultural Credit Act 1978;

(f) the Patents Act 1992;

(g) the Trade Marks Act 1996;

(h) the Taxes Consolidation Act 1997.

41. Transfer of foreign assets and liabilities.

41.— (1) In this section—

“foreign asset” means an asset in which the transfer or assignment of any right, title or interest to be transferred under a transfer order is governed in whole or in part by the law of a state (including the law of a territorial unit of a state) other than the State;

“foreign law”, in relation to a foreign asset or a transaction in relation to a foreign asset means the law of a state (including the law of a territorial unit of a state) other than the State;

“foreign liability” means a liability in which the transfer or assignment of any right, title or interest to be transferred under a transfer order is governed in whole or in part by the law of a state (including the law of a territorial unit of a state) other than the State.

(2) This section applies in relation to the transfer of a foreign asset or foreign liability expressed to be transferred by a transfer order, where—

(a) the transfer order is not recognised under the relevant foreign law, or

(b) the transfer order is otherwise not fully effective, under the relevant foreign law, to transfer the asset or liability.

(3) To the extent that a liability expressed to be transferred under a transfer order is or includes a foreign liability—

(a) if the law governing the transfer of the foreign liability permits the transfer or assignment of that liability, the transferor and transferee shall do everything required by that law to give effect to the transfer or assignment, and

(b) to any extent that that law does not permit the transfer or assignment of the foreign liability, the transferee is responsible for discharging the transferor’s obligations under that liability.

(4) To the extent that an asset expressed to be transferred by a transfer order is or includes a foreign asset—

(a) if the law governing the transfer or assignment of the foreign asset permits the transfer or assignment of that asset, the transferor shall do everything required by that law to give effect to the transfer, and

(b) to the extent that that law does not permit the transfer or assignment of the foreign asset, the transferor shall do all that is possible to do under that law to assign to the transferee the greatest possible interest in the foreign asset.

(5) The transferor, to the extent that an asset is one to which subsection (4) (b) applies—

(a) is subject to duties, obligations and liabilities as nearly as possible corresponding to those of a trustee in relation to that asset, and

(b) shall hold that asset for the benefit and to the direction of the transferee,

in each case so far as possible consistent with the nature of, and the terms and conditions of the transfer of, that asset.

(6) A trust, duty, obligation or liability created or constituted by this section shall not be taken to constitute a security interest.

(7) The transferor shall obtain, make, maintain and comply with any authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration that is necessary in the State and in any other place in connection with ensuring the validity and enforceability of any act, matter or thing referred to in this section.

42. Application of Bankers’ Books Evidence Act 1879.

42.— (1) The Bankers’ Books Evidence Act 1879 applies with respect to any books of the transferor transferred to the transferee in connection with the assets and liabilities transferred by a transfer order and to entries made in those books before the transfer date.

(2) In subsection (1) “books” includes ledgers, day books, cash books, account books and all other books and records used in the ordinary business of the transferor before the date on which the transfer has effect.

43. Stamp duty.

43.— (1) Stamp duty shall not be chargeable on a transfer order, an order varying or amending a transfer order, an order setting aside a transfer order or any ancillary agreement entered into between the relevant institution and transferee.

(2) Stamp duty shall not be chargeable on any instrument executed in order to give legal effect to the transfers effected or taken to be effected by this Part.

PART 6 General matters in relation to companies, etc.

44. Minister’s powers in relation to removal of directors, etc.

44.— (1) The Minister may by written notice—

(a) remove a person from a position of director or officer of a relevant institution, or

(b) terminate the employment by a relevant institution of a person.

(2) The removal of a person or termination of a person’s employment 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) Where a notice under subsection (1) is expressed to have immediate effect, no period of notice is necessary to the person concerned.

(4) The removal of a person from a position of director or officer of a relevant institution under this section also terminates any contract of service or contract for services between the person and the relevant institution.

(5) Nothing in this section deprives a person removed or whose employment is terminated of any right to claim compensation or damages from the relevant institution for the loss of his or her office or appointment.

(6) Notwithstanding subsection (5)—

(a) a court, tribunal or rights commissioner may not grant any remedy that would have the effect of preventing or restraining the Minister from exercising his or her functions under subsection (1), and

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

45. Minister’s powers in relation to appointment of directors, etc.

45.— (1) With the consent of the Governor, the Minister may appoint a person as a director of a relevant institution. Where the relevant institution is a credit institution, Part 3 of the Central Bank Reform Act 2010 does not apply in relation to such an appointment.

(2) Subject to subsection (3), the appointment of a person under this section may be expressed to take effect immediately and, if so expressed, has that effect.

(3) A person appointed under this section holds office for the period, and upon the terms and conditions, that the Minister determines.

(4) An appointment under this section is effective—

(a) even if the person appointed does not hold any share qualification required by the memorandum of association or articles of association of the relevant institution concerned,

(b) whether or not he or she satisfies any other requirement for appointment under that memorandum or those articles, and

(c) even if the appointment causes the number of directors of the relevant institution to exceed the number otherwise authorised.

(5) A person appointed under this section is removable from office only by the Minister.

46. No resolution required, etc.

46.— (1) No enactment or rule of law, no provision of a relevant institution’s memorandum of association or articles of association, no agreement and no rule or other instrument shall be taken to require the members or directors of a relevant institution to approve by resolution (whether an ordinary, special or other resolution) the taking of any action—

(a) by the relevant institution,

(b) by the directors of the relevant institution, or

(c) where the relevant institution is under special management, by the special manager,

which that institution is directed to take by the Minister under this Act or by order of the Court under this Act or which is required to be taken in order to make effective any order made or direction given by the Minister or the Court under this Act.

(2) Any resolution passed by the members of a relevant institution the effect of which would otherwise be to prevent the taking of any action by—

(a) the relevant institution,

(b) the directors of the relevant institution, or

(c) where the relevant institution is under special management, the special manager,

which that institution is required to take by an order under this Act, or which is necessary to make effective any such order, or any requirement of the Minister under this Act, is of no effect.

47. Certain provisions may be included in orders.

47.— (1) There may be included in an order under this Act a provision that all the powers, or any specified power, exercisable by the members of the relevant institution concerned in a general meeting under, as the case may be, F52[the Companies Acts or theBuilding Societies Act 1989], any other enactment, the relevant institution’s memorandum of association or articles of association, any agreement or any rule or other instrument, shall instead be exercised by the Minister. Such an exercise shall be taken for all purposes to have been that of the members.

(2) Where an order under this Act makes provision in accordance with subsection (1), any provision of the enactments or instruments referred to in that subsection which—

(a) enables or requires any matter to be done or to be decided by a relevant institution in general meeting, or

(b) requires any matter to be decided by a resolution of that institution,

shall be taken to be satisfied by a decision of the Minister notified in writing to that institution.

48. Directors’ duties.

48.— (1) In the performance of their functions the directors of a relevant institution shall have a duty to have regard to the matters mentioned in section 4(f).

(2) The duty imposed by subsection (1)—

(a) is owed by the directors to the Minister on behalf of the State, and

(b) takes priority over any other duty of the directors to the extent of any inconsistency.

(3) The Minister may make and publish guidelines in relation to the duty imposed by subsection (1). A director may rely on any such guidelines in demonstrating his or her compliance with that duty.

(4) If the Minister is of the opinion that it is no longer necessary for this section to apply in relation to a particular relevant institution, he or she may so order.

(5) The Minister shall lay a copy of an order under subsection (4) before each House of the Oireachtas as soon as may be after the order is made.

49. Minister not to be director, etc.

49.— The Minister or a nominee of the Minister shall not, by reason of any action taken under this Act, 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 nor a person discharging managerial responsibilities of a relevant institution, any of its subsidiaries or any holding company.

50. Minister’s powers to impose requirements on relevant institutions.

50.— (1) The Minister may by notice in writing impose a requirement on a relevant institution if the Minister is of the opinion that it is necessary to do so to secure the achievement of any of the purposes of this Act (including reducing the reliance of that institution or another relevant institution on State financial support or assisting in the recapitalisation of a relevant institution, or providing necessary protection for the State in the context of such a recapitalisation).

(2) The requirements that may be imposed under this section include the following—

(a) to provide such information concerning the rights and liabilities of the relevant institution as the Minister requires to permit the effective and efficient making of a subordinated liabilities order;

(b) to provide such information concerning its assets and liabilities as the Minister requires to permit the effective and efficient making of a transfer order;

(c) to make a specified application to a specified authority or person on terms that the Minister specifies;

(d) to suspend for a specified period (not exceeding 6 months) a specified activity unless otherwise authorised by the Minister;

(e) to draw up or amend one or more restructuring plans to achieve the objectives of this Act and to make changes to such restructuring plans and implement the plans (including changes) within a specified timeframe;

(f) to change the management of the relevant institution by taking specified steps to restructure its executive management responsibilities (including by terminating the employment of a specified employee), strengthen its management capacity and improve its corporate governance;

(g) to comply with some or all of the provisions on conduct, transparency and reporting requirements set out in paragraphs 24 to 52 of the Schedule to the Credit Institutions (Financial Support) Scheme 2008 (S.I. No. 411 of 2008) and paragraph 22 of the Credit Institutions (Eligible Liabilities Guarantee) Scheme 2009 F53[(S.I. No. 490 of 2009);]

F54[(h) to dispose of some of the assets or part of the undertaking of the relevant institution, subject to such terms and conditions as are specified by the Minister, where, in the opinion of the Minister, the disposal is required in order for the relevant institution concerned to achieve—

(i) a ratio the subject of a requisition undersection 23of theCentral Bank Act 1971,

(ii) a requirement as to the composition of the assets or liabilities of the relevant institution as specified by the Bank under section 23A of that Act.]

F55[(2A) If the Minister imposes a requirement on 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 requirement that the requirement or part is made with that intention, in accordance with the CIWUD Directive.]

(3) A relevant institution shall comply with a requirement under this section in accordance with its terms, including any specification as to the time by which, or period within which, the requirement shall be complied with.

(4) In complying with a requirement under this section, a relevant institution shall disclose in utmost good faith all matters and circumstances in relation to that institution or a subsidiary that might materially affect, or might reasonably be expected to materially affect, any decision of the Minister in the performance of his or her functions under this Act.

(5) The Minister may direct a relevant institution that any information provided by that institution or any of its subsidiaries pursuant to a requirement under this section is to be certified as accurate and complete jointly by the chief executive officer and chief financial officer of the institution.

(6) The officers and employees of a relevant institution shall comply with a requirement under this section and shall cause any subsidiary of the relevant institution to comply with the requirement (including any specification as to the time by which, or period within which, the requirement shall be complied with) to the extent that the requirement applies to the subsidiary.

(7) The holding company of a relevant institution and its officers and employees shall comply with a requirement under this section in accordance with its terms including any specification as to the time by which, or period within which, the requirement shall be complied with.

(8) The obligation to comply with a requirement under this section—

(a) does not, notwithstanding any provision of any enactment or agreement or any rule of law, require the consent, approval or concurrence of any other person, and

(b) takes priority over any other duty or obligation to any person.

(9) If a relevant institution, an officer or employee of a relevant institution or a subsidiary or holding company of a relevant institution or an officer or employee of such a subsidiary or holding company does not comply with a requirement, the Minister may apply to the Court by motion on notice on affidavit for an order compelling compliance with that requirement.

(10) The Court may, in addition to the order compelling the relevant institution to comply with a requirement under this section, make any other order or direction it considers necessary in order to ensure that the relevant institution complies with the requirement.

(11) Nothing in this section authorises the Minister to—

(a) make a requirement under this section that would otherwise require the making of a direction order, or

(b) place a relevant institution under special management.

PART 7 Miscellaneous

51. Minister may impose certain conditions in relation to financial support.

51.— (1) Nothing in this Act or in any other enactment, and no rule of law, prevents the Minister, when providing a financial support facilitated by this Act or pursuant to any other enactment, from imposing any terms and conditions which any other provider of financial support to the relevant institution concerned would be entitled to impose or which the Minister considers desirable to impose in order to protect the public interest.

(2) In considering the terms and conditions to be imposed in respect of any future financial support the Minister may, insofar as those terms and conditions relate to bonus payments payable by the relevant institution concerned to its employees or officers, take into account—

(a) the extent of the financial support already provided to the relevant institution,

(b) the benefits already received, and to be received, by the relevant institution and its officers and employees and in particular the fact that those officers and employees have received or will receive the benefit of continued employment with the relevant institution by reason of that financial support,

(c) the fact that such bonuses are unlikely to have been paid if the State had not enabled the relevant institution to meet its financial and regulatory obligations through the provision of financial support, and

(d) the extent to which the circumstances giving rise to the necessity for financial support could not have been within the reasonable contemplation of the relevant institution and its officers and employees when the arrangements for bonus payments were concluded.

(3) In particular, nothing in this Act or any other enactment prevents the Minister from imposing such terms and conditions with regard to payment or non-payment or manner of payment or suspension or postponement of any performance bonuses payable by a relevant institution, wholly or partly in respect of, or wholly or partly referable to, any period during which the relevant institution benefited from financial support provided by the State.

(4) It shall not be lawful for a relevant institution to make any payment that would amount to a breach of such a term or condition.

(5) The provisions of this section are without prejudice to any defences or justifications for non-payment at law, and without prejudice to all legal entitlements the Minister has with regard to the terms and conditions he or she may impose as a condition of granting financial support.

52. Effect of CIWUD Directive.

52.— Any order made under this Act F56[or requirement imposed undersection 50] that is declared to have been made with the intention of preserving or restoring the financial position of a credit institution is intended to have effect in accordance with the CIWUD Directive and any law giving effect to it.

52A. F57[Costs incurred in relation to making orders, etc.

52A.—Where the Courts Service, or another body funded, wholly or partly, out of moneys provided by the Oireachtas, or from the Central Fund or the growing produce of the Central Fund, has incurred costs in relation to the translation or publication of an order under this Act (including where the translation or publication is required by the European Communities (Reorganisation and Winding-Up of Credit Institutions) Regulations 2011 (S.I. No. 48 of 2011)), the costs are a debt due and owing by the credit institution concerned, and may be recovered as a simple contract debt in any court of competent jurisdiction.]

53. Act, etc., to over-ride inconsistent provisions.

53.— The provisions of this Act, and any order made under this Act, have effect notwithstanding anything in—

(a) F58[the Companies Acts or theBuilding Societies Act 1989] or any other enactment,

(b) any other rule of law or equity,

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

(d) the listing rules of any regulated market or the rules of any other market on which the shares of a relevant institution may be traded from time to time,

(e) the memorandum of association and articles of association of a relevant institution, or

(f) any agreement to which such an institution or any of its subsidiaries is a party, is bound by, or has an interest in,

except to any extent to which this Act expressly provides otherwise.

54. Application of laws in relation to transfers, etc., of credit institutions.

54.— Parts 2 and 3 of the Competition Act 2002 and section 7 of the Act of 2008 do not apply with respect to—

(a) the issue of shares in a relevant institution to the Minister or to a nominee of the Minister under a direction order,

(b) the appointment of a special manager to a relevant institution,

(c) the acquisition or disposal of an asset, or all of the assets, of a relevant institution or a liability of that institution by a special manager or under a direction order, or

(d) a transfer under a transfer order.

55. Orders in relation to particular relevant institutions.

55.— (1) If the Minister, having consulted with the Governor, is of the opinion, in relation to a relevant institution, that the making of an order under this section is necessary to secure the achievement of any of the following purposes:

(a) to provide the assurance required to promote the financial stability of the relevant institution concerned;

(b) to remove or reduce the likelihood of a requirement for further State investment in that institution;

(c) to facilitate the return to normal operations of that institution;

(d) to facilitate the return to normal operations of the banking sector generally;

(e) to facilitate the acquisition of an interest in that institution by a person other than the State where the Minister is of the opinion that such an acquisition will contribute to the achievement of any of the purposes referred to in paragraphs (a) to (d),

the Minister may by order declare that the relevant institution shall be taken not to be a relevant institution during a period specified in the order to the extent specified in the order, but—

(i) only for the purposes of a specified provision or provisions of this Act,

(ii) only on fulfilment of one or more conditions specified in the order, and

(iii) only while specified circumstances relevant to that institution prevail.

(2) While an order under this section is in effect in relation to a relevant institution, the relevant institution shall, on fulfilment of the condition specified in the order, be taken not to be a relevant institution, but—

(a) only for the purposes of the specified provision or provisions of this Act, and

(b) only while the specified circumstances prevail.

(3) On the revocation of an order under this section, the relevant institution concerned again becomes a relevant institution for all the purposes of this Act.

(4) As soon as practicable after the Minister makes an order under this section, he or she shall lay a copy of the order before each House of the Oireachtas.

56. Expression of intention in relation to exercise of powers in relation to particular relevant institutions.

56.— (1) Where the Minister, having consulted with the Governor, is of the opinion in relation to a relevant institution that particular circumstances exist, the Minister may express, in writing, an intention in relation to the future exercise, in relation to that relevant institution, of his or her powers under this Act.

(2) The Minister shall express an intention under this section only for one or more of the purposes referred to in paragraphs (a) to (e) of section 55(1) and only if he or she is of the opinion that it is more appropriate to do so than to make an order under that section.

(3) A expression of intention by the Minister under this section—

(a) shall be addressed to such persons as the Minister considers appropriate, having regard to the purpose or purposes for which it is made, and

(b) shall be to the effect that, if specified circumstances exist, he or she does not intend to exercise the powers or a specified power conferred by this Act in relation to a specified relevant institution.

57. Minister’s and Court’s powers under this Act not exclusive of other powers.

57.— (1) The powers of the Court under a provision of this Act are in addition to the powers of the Court under any other provision of this Act and under any other enactment.

(2) The powers of the Minister under a provision of this Act are in addition to the powers of the Minister under any other provision of this Act, any other enactment, the memorandum or articles of association of a relevant institution or any agreement.

(3) The exercise by the Minister of a power under a provision of this Act does not preclude the exercise by the Minister of any other power of the Minister under any other provision of this Act or any other enactment, the memorandum of association or articles of association of a relevant institution or any agreement.

58. Minister’s power to take certain proceedings in other jurisdictions.

58.— The Minister may institute proceedings to enforce an order under this Act in a place outside the State.

59. Proposed orders to be kept in confidence.

59.— (1) A person shall not F59[(other than the Minister)] publish the fact that the Minister proposes to make or has made a proposed direction order, proposed special management order, proposed subordinated liabilities order or proposed transfer order unless required to do so by an enactment.

(2) A person (including a relevant institution) who contravenes subsection (1) commits an offence punishable—

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

(b) on conviction on indictment by a fine not exceeding €100,000 or imprisonment for a term not exceeding 3 years or both.

(3) It is not a contravention of subsection (1) for a relevant institution to disclose a fact referred to in that subsection for the purposes of obtaining professional advice.

60. Confidentiality of proceedings.

60.— The Court may order that any application under this Act, or any part of such an application, shall be heard otherwise than in public or may impose restrictions with regard to the disclosure in open court, publication or reporting of any material that might be commercially sensitive.

61. Effect of orders on certain other obligations.

61.— (1) In this section “relevant agreement” means an agreement under which the relevant institution in relation to which an order under this Act is made or any of its subsidiaries, its holding company and any subsidiary of its holding company enjoys any right or interest or is subject to any obligation or liability (regardless of whether such an agreement is governed by the law of the State or another place).

(2) If any consequence specified or referred to in subsection (4) in relation to a relevant institution or any of its subsidiaries, its holding company and any subsidiary of its holding company would, but for this subsection, arise under a relevant agreement by virtue of—

(a) the enactment of this Act,

(b) the publication of the Bill for this Act, or

(c) any statement made by the Minister, the Governor or the relevant institution in relation to the Bill for this Act, the contents of that Bill or this Act, or the use or effect of any powers in this Act,

then, notwithstanding anything in the relevant agreement and subject to section 62—

(i) no interest or right of any third party arises or becomes exercisable; and

(ii) no liability or obligation arises or is incurred by any third party,

by virtue of that enactment, publication or statement.

(3) Where an order or requirement has been made under this Act in relation to a relevant institution, any of its subsidiaries, its holding company or any subsidiary of its holding company F60[(whether or not the order or requirement is subsequently set aside, or varied or amended in a relevant manner)], and a relevant agreement would (apart from this subsection) cause a consequence specified or referred to in subsection (4) to follow by virtue of—

(a) the making of the order or requirement or any step taken (including the making of a proposed order) in preparation for the making of the order or requirement,

(b) an act taken or omitted to be taken by any person in compliance with the order or requirement,

(c) any consequences of any such act or omission,

(d) any consequence of the order or requirement, or

(e) any other thing done or authorised to be done under, or resulting from any provision of this Act,

then, notwithstanding that relevant agreement and subject to section 62—

(i) no interest or right of any third party arises or becomes exercisable, and

(ii) no liability or obligation arises or is incurred by any third party,

by virtue of any of the matters mentioned in any of paragraphs (a) to (e).

(4) The consequences referred to in subsections (2) and (3) are the following:

(a) the creation of an obligation or liability;

(b) the suspension or extinction (however described, and whether in whole or in part) of a right or an obligation or the becoming subject to a right or an obligation;

(c) the termination or extinguishment of the relevant agreement concerned or a right or obligation under it;

(d) a right becoming exercisable to terminate or modify the relevant agreement or a right or obligation under it;

(e) an amount becoming due and payable or capable of being declared due and payable or ceasing to be payable;

(f) any other change in the amount or timing of any payment falling to be made or due to be received by any person;

(g) a right becoming exercisable to withhold, net or set off any payment under or in connection with the relevant agreement;

(h) the occurrence of an event giving rise to a default or breach of a right or obligation;

(i) a right becoming exercisable not to advance any amount;

(j) an obligation arising to provide or transfer a deposit or collateral;

(k) a right of transfer or assignment of an asset or liability;

(l) any right to enforce a guarantee, indemnity or security interest (however described);

(m) the triggering of any mandatory prepayment event (howsoever described);

(n) any obligation to return collateral or its equivalent;

(o) the cancellation of any obligation to advance any amount or to provide credit or a contingent instrument;

(p) legal proceedings becoming maintainable to enforce the relevant agreement;

(q) the termination or modification of an obligation to provide a service or product;

(r) the accrual of any right to give or withhold any consent or approval;

(s) any event of default or breach of any right arising;

(t) any right or obligation not arising;

(u) the imposition of any condition on the relevant agreement;

(v) the imposition of any condition on any right or obligation under the relevant agreement;

(w) the creation of any constructive or resulting trust or other equitable interest or equity;

(x) the accrual of any right to trace any property or to claim an equitable interest in or equity in respect of any property or to claim any breach of trust;

(y) any other right or remedy (whether or not similar in kind to those referred to in paragraphs (a) to (x)) arising or becoming exercisable.

(5) A relevant agreement has a consequence specified in subsection (4) if the substantial effect of the agreement is to produce that consequence, regardless of whether or not the agreement describes its consequences in the precise terms used in that subsection.

62. Limitation of operation of section 61.

62.— (1) If the Minister is of the opinion that in a particular case or cases the effect of section 61 is in all the circumstances unduly onerous, or causes unfairness or undue hardship, and that it is appropriate in all the circumstances to do so, he or she may by order provide that, notwithstanding subsections (2) and (3) of section 61, a provision in a relevant agreement that provides for a consequence mentioned or referred to in section 61(4) has effect to the extent specified in the order.

(2) An order under subsection (1)—

(a) may make provision in relation to the effect of a provision in—

(i) a particular relevant agreement,

(ii) relevant agreements of a particular kind, or

(iii) rights held under a relevant agreement, or relevant agreements of a particular kind, by a particular person or a particular class of persons,

(b) in the case of an order that makes provision in relation to relevant agreements of a particular kind, may specify the kind by reference to any common characteristic of the agreements concerned, and

(c) in the case of an order that makes provision in relation to rights held by a particular class of persons, may specify the class by reference to any common characteristic of the persons concerned, and

(d) may be expressed to have retrospective effect to a date falling after 13 December 2010.

(3) As soon as practicable after the Minister makes an order under subsection (1), he or she shall lay a copy of the order before each House of the Oireachtas.

(4) If the Minister considers that an order under subsection (1) contains matter that is commercially sensitive, he or she may direct—

(a) that the obligations in relation to the order under section 3(1) of the Statutory Instruments Act 1947 are to be taken to be satisfied by the printing, sending to the institutions mentioned in section 3(1)(a) of that Act, publication and sale of a version of the order from which the commercially sensitive matter is omitted, or

(b) if the preparation of such a version would be impracticable, or would result in the version being seriously misleading, that the order is exempt from the operation of section 3(1) of that Act.

(5) A version of an order under subsection (1) prepared in accordance with a direction given by the Minister under subsection (4)(a) shall indicate that matter has been omitted from the version of the order and the general nature of that matter.

(6) A direction given by the Minister under subsection (4) shall be published in Iris Oifigiúil as soon as practicable.

(7) Evidence of a direction given by the Minister under subsection (4) may be given by the production of a copy of Iris Oifigiúil purporting to contain the direction.

(8) Nothing in this Act or the Statutory Instruments Act 1947 affects any obligation that arises under the Regulations of 2004 to publish, or give notice of, an order or direction under this section.

63. Limitation of judicial review.

63.— (1) Leave shall not be granted for judicial review of any decision under this Act unless—

(a) either—

(i) the application for leave to seek judicial review is made to the Court within 14 days after the decision is notified to the person concerned, or that person otherwise becomes aware of the decision, or

(ii) the Court is satisfied that—

(I) there are substantial reasons why the application was not made within that period, and

(II) it is just, in all the circumstances, to grant leave, having regard to the interests of other affected persons and the public interest,

and

(b) the Court is satisfied that the application raises a substantial issue for that Court’s determination.

(2) The Court may make such order on the hearing of the judicial review as it thinks fit, including an order remitting the matter back to the Minister with such directions as the Court thinks appropriate or necessary.

(3) A person is not entitled to apply for the judicial review of a decision referred to in subsection (1) if he or she was entitled to apply to have the relevant order of the Court set aside but did not do so.

(4) A person is not entitled to apply for the judicial review of a decision referred to in subsection (1) if he or she applied to have the relevant order of the Court set aside and that application was refused by the Court.

64. Limitation of certain rights of appeal to the Supreme Court.

64.— (1) The determination of the Court of an application for leave to apply for judicial review, or an application for judicial review, is final and no appeal lies from the decision of the Court to the Supreme Court in either case, except with the leave of the Court.

(2) A direction order, special management order, subordinated liabilities order or transfer order, and an order varying such an order or setting it aside, is final and no appeal lies from the order of the Court to the Supreme Court except with the leave of the Court.

(3) The Court shall grant leave under subsection (1) or (2) only if the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(4) On an appeal from a determination of the Court in respect of an application referred to in subsection (1), or an appeal from an order referred to in subsection (2), the Supreme Court—

(a) has jurisdiction to determine only the point of law certified by the Court under subsection (3), as the case may be (and to make only such order in the proceedings as follows from that determination), and

(b) shall, in determining the appeal, act as expeditiously as possible consistent with the administration of justice.

(5) This section does not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

65. Application of laws in relation to netting agreements, etc.

F61[65.—(1) Nothing in this Act—

(a) affects the operation of—

(i) theNetting of Financial Contracts Act 1995,

(ii) the European Communities (Settlement Finality) Regulations 2010 (S.I. No. 624 of 2010),

(iii) the European Communities (Financial Collateral Arrangements) Regulations 2010 (S.I. No. 626 of 2010), or

(iv) Regulation 30 of the Regulations of 2011,

in relation to an agreement to which a relevant institution or any of its subsidiaries is a party, or

(b) affects the terms and operation of any collateral arrangements governed by any provision of the law of a Member State required for the implementation of the provisions of—

(i) Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 (as amended by Directive 2009/44/EC of the European Parliament and of the Council of 6 May 2009), or

(ii) Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 (as amended by Directive 2009/44/EC of the European Parliament and of the Council of 6 May 2009).]

(2) Nothing in this Act affects the operation of the Asset Covered Securities Act 2001.

66. Saving of legal proceedings, etc.

66.— A transfer under a transfer order, and any other thing done under an order or requirement made under this Act (including the dissolution of a relevant institution)—

(a) does not affect any legal proceedings taken, investigation undertaken, or disciplinary or enforcement action undertaken by the Bank or any other person, in respect of any matter in existence at the time the transfer was made or other thing was done, and

(b) does not preclude the taking of any legal proceedings, or the undertaking of any investigation, or disciplinary or enforcement action, in respect of any contravention of an enactment or any misconduct which may have been committed before the transfer was made or the other thing was done.

67. Prohibition of certain secured borrowings.

67.— (1) This section applies to—

(a) a local authority (within the meaning of the Local Government Act 2001), and

(b) any other person or body prescribed under subsection (5).

(2) A person or body to which this section applies shall not mortgage, pledge or otherwise encumber its own assets or revenues to secure any present or future indebtedness or any guarantee or indemnity given in respect of such indebtedness, without the consent of the Minister.

(3) The Minister shall not consent under subsection (2) unless he or she is satisfied that the relevant borrowing would not give rise to a breach of an obligation to the facility lenders.

(4) Where a security is granted in contravention of subsection (2) the facility lenders shall be taken to be entitled to share pari passu and pro rata in that security or encumbrance.

(5) The Minister may prescribe persons or bodies for the purposes of subsection (1) (b) by regulation.

(6) In making regulations under subsection (5), the Minister shall have regard to the list of bodies included in General Government maintained by the Central Statistics Office.

(7) In this section “facility lender” means—

(a) the International Monetary Fund,

(b) the European Financial Stabilisation Mechanism,

(c) the European Financial Stability Facility, F62[…]

F63[(ca) the European Union as lender to the State under any loan agreement with the European Union, and]

(d) the lender under any bilateral loan agreement with a Member State.

68. Regulations.

68.— (1) The Minister may make regulations to do anything that appears necessary or expedient for bringing this Act into operation.

(2) Where a provision of this Act requires or authorises the Minister to make regulations, such regulations—

(a) may make different provision for different circumstances or cases, classes or types, and

(b) may contain such incidental, consequential or transitional provisions as the Minister considers necessary or expedient.

(3) Regulations made under this section shall be laid before each House of the Oireachtas as soon as may be after they are made and, if a resolution annulling them is passed by either such House within the next 21 days on which that House has sat after the regulations are laid before it, the regulations shall be annulled accordingly but without prejudice to the validity of anything previously done under the regulations.

69. Cessation of effect of Act.

69.— (1) This Act (other than sections 51 and 67) ceases to have effect on 31 December 2012 or a later date substituted by resolution of both Houses of the Oireachtas.

(2) Notwithstanding the cessation in effect of this Act, any order or requirement made under it continues to have effect according to its terms.

(3) Notwithstanding the cessation in effect of this Act in accordance with subsection (1), the provisions of this Act shall be taken to continue in effect to any extent necessary—

(a) to enforce any order or requirement continued in effect by subsection (2), and

(b) to vary, terminate or revoke any such order or requirement.

70. Disapplication of section 7 of Official Languages Act 2003.

70.— Section 7 of the Official Languages Act 2003 does not apply in relation to this Act. The text of this Act shall be made available electronically in each of the official languages as soon as practicable after its enactment.

PART 8 Amendment of other enactments

71. Amendment of Building Societies Act 1989.

71.— The Building Societies Act 1989 is amended as set out in Part 1 of Schedule 1.

72. Amendment of Central Bank Act 1942.

72.— The Central Bank Act 1942 is amended as set out in Part 2 of Schedule 1.

73. Amendment of Central Bank Act 1971.

73.— The Central Bank Act 1971 is amended as set out in Part 3 of Schedule 1.

74. Amendment of Act of 2008.

74.— The Act of 2008 is amended as set out in Part 4 of Schedule 1.

75. Amendment of National Asset Management Agency Act 2009.

75.— The National Asset Management Agency Act 2009 is amended as set out in Part 5 of Schedule 1.

76. Amendment of National Pensions Reserve Fund Act 2000.

76.— F1[…]

77. Amendment of Regulations of 2004.

77.— (1) The Regulations of 2004 are amended as set out in Schedule 2.

(2) The amendment of the Regulations of 2004 by subsection (1) and Schedule 2 does not prevent their further amendment or revocation by statutory instrument.