Irish Collective Asset-management Vehicles Act 2015

PART 1 Preliminary and General

Chapter 1

1.. Short title and commencement

1. (1) This Act may be cited as the Irish Collective Asset-management Vehicles Act 2015.

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

(3) In relation to times before the coming into operation of the Companies Act 2014 references in this Act to any provision of that Act have effect as references to the corresponding provisions of any enactment to be repealed by that Act.

2.. Definitions

2. In this Act—

“AIFM Regulations” means the European Union (Alternative Investment Fund Managers) Regulations 2013 (S.I. No. 257 of 2013);

“annual general meeting” has the meaning given by section 89(1);

F1[…]

“authorised ICAV” means an ICAV in respect of which a relevant authorisation is in operation;

“Bank” means the Central Bank of Ireland;

“Bank regulations” means regulations made by the Bank under Part 8 of the Central Bank (Supervision and Enforcement) Act 2013;

“category 1 offence” means an offence the penalties for which are specified in section 186(1);

“category 2 offence” means an offence the penalties for which are specified in section 186(2);

“category 3 offence” means an offence the penalties for which are specified in section 186(3);

F2[“category 4 offence”means an offence the penalties for which are specified insection 186(4);]

“Community act” means an act adopted by an institution of the European Union;

“company” means a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act;

“debenture” includes debenture stock, bonds and any other securities of an ICAV whether constituting a charge on the assets of the ICAV or not;

“depositary” means a depositary within the meaning of Regulation 22(3) of the AIFM Regulations;

“disqualification order” has the same meaning as in the enactments specified in section 87 as applied in relation to an ICAV by that section;

“enactment” includes an instrument under an enactment;

“financial services legislation” has the meaning given by section 3 of the Central Bank (Supervision and Enforcement) Act 2013;

“group” means a holding company and its subsidiaries;

“holding company” has the meaning given by section 8 of the Companies Act 2014;

“ICAV” means an Irish collective asset-management vehicle;

“information” includes information contained in a document;

“instrument of incorporation” shall be read in accordance with section 6;

“investment company” has the same meaning as in Part 24 of the Companies Act 2014;

“Irish collective asset-management vehicle” means a body registered as such under this Act;

“management company”, in relation to an ICAV, means a company designated by the ICAV to undertake the management of the ICAV;

“member”, in relation to an ICAV, means a shareholder in the ICAV;

“Minister” means the Minister for Finance;

“officer”, in relation to an ICAV, includes a director or secretary;

“ordinary resolution”, in relation to an ICAV, means a resolution passed by a simple majority of the votes cast by the members of the ICAV as, being entitled to do so, vote in person or by proxy at a general meeting of the ICAV;

“register of ICAVs” means the register kept by the Bank under section 14;

“register of members”, in relation to an ICAV, means the register of members kept by it under section 49;

“Registrar” means Registrar of Companies;

“registration order” shall be read in accordance with section 12;

“relevant authorisation” means an authorisation under—

(a) section 19, or

(b) the UCITS Regulations;

“shadow director”, in relation to an ICAV, means a person in accordance with whose directions or instructions the directors of the ICAV are accustomed to act except a person in accordance with whose directions or instructions the directors are accustomed so to act by reason only that they do so on advice given by the person in a professional capacity;

“special resolution”, in relation to an ICAV, means a resolution passed by not less than 75 per cent of the votes cast by the members of the ICAV as, being entitled to do so, vote in person or by proxy at a general meeting of the ICAV;

“sub-fund” means a portfolio of assets and liabilities maintained by an ICAV in accordance with its instrument of incorporation;

“subsidiary” has the meaning given by section 7 of the Companies Act 2014;

“UCITS Regulations” means the European Communities (Undertakings for Investment in Transferable Securities) Regulations 2011 (S.I. No. 352 of 2011);

“umbrella fund” means an ICAV which has one or more sub-funds;

“undischarged bankrupt” means a person who is declared bankrupt by a court of competent jurisdiction, within the State or elsewhere, and who has not obtained a certificate of discharge or its equivalent in the relevant jurisdiction.

2A.(1) With respect to any question that may arise, during, or for the purposes of, any proceedings of a sub-fund or a class of members, as to whether any applicable requirement, whether arising under the instrument of incorporation of the ICAV concerned or otherwise, for—

(a) a resolution to be passed as an ‘ordinary resolution’ by that sub-fund or class, or

(b) a resolution to be passed as a ‘special resolution’ by that sub-fund or class,

has been satisfied,subsection (2)or, as appropriate,subsection (3)shall have effect.

(2) For the purposes ofsubsection (1)(a), a resolution passed by a simple majority of the votes cast by the members of the sub-fund or, as appropriate, of the class as, being entitled to do so, vote in person or by proxy at the general meeting concerned of the sub-fund or the meeting concerned of the class of members shall be regarded as an ordinary resolution.

(3) For the purposes ofsubsection (1)(b), a resolution passed by not less than 75 per cent of the votes cast by the members of the sub-fund or, as appropriate, of the class as, being entitled to do so, vote in person or by proxy at the general meeting concerned of the sub-fund or the meeting concerned of the class of members shall be regarded as a special resolution.]

3.. Power to make regulations

3. (1) The Minister may make regulations—

(a) for the general purpose of this Act or for any particular purpose of this Act, and

(b) in relation to any matter referred to as the subject of regulations.

(2) Regulations under this Act may apply either generally or by reference to a specified class or classes of ICAV, or to a specified time or times, or during a specified period or periods or by reference to any other matter as the Minister may consider appropriate.

(3) Without prejudice to any specific provision of this Act, any regulations under this Act may contain such incidental, consequential, transitional or supplementary provisions as may appear to the Minister to be necessary or proper for any purpose of this Act or in consequence of, or to give full effect to, any provision of this Act.

4.. Expenses

4. The expenses incurred by the Minister in the administration of this Act shall be paid out of moneys provided by the Oireachtas.

Chapter 2

5.. Creation of ICAV with limited liability

5. (1) This Act enables by means of—

(a) the furnishing of an instrument of incorporation, and certain other information, to the Bank, and

(b) compliance with the other requirements imposed by or under this Act or any other enactment,

a body corporate, of a type to be known as an Irish collective asset-management vehicle, to be formed and registered and, subject to its obtaining the relevant authorisation, to carry on business as an authorised ICAV.

F4[(2) The sole object of an ICAV shall be the collective investment of its funds in property and giving members the benefit of the results of the management of its funds, but this is subject tosubsection (2A).

(2A) Where an ICAV is authorised under theUCITS Regulations, the sole object of the ICAV shall be as set out inRegulation 4(3)(a)of those Regulations.

(2B)Section 6(6)makes provision, consequent on the enactment ofsubsection (2A), in relation to an ICAV formed before the commencement ofsection 44of theInvestment Limited Partnerships (Amendment) Act 2020and which is authorised under theUCITS Regulations.]

(3) The liability of the members of an ICAV shall be limited to the amount, if any, unpaid on the shares respectively held by them.

(4)Subsection (3) is without prejudice to any other liability to which a member may be subject as provided by or under this Act.

6.. Instrument of incorporation

6. (1) Any 2 or more persons, associated for any lawful purpose, may prepare or cause to be prepared an instrument to be known as an instrument of incorporation in respect of a proposed ICAV.

(2) Following the instrument’s preparation, the persons referred to in subsection (1) shall subscribe their names to the instrument of incorporation.

(3) The instrument of incorporation shall provide that—

F5[(a) the sole object of the ICAV—

(i) shall, subject tosubparagraph (ii), be the collective investment of its funds in property and giving members the benefit of the results of the management of its funds, or

(ii) shall, in the case of an ICAV authorised under theUCITS Regulations, be as set out inRegulation 4(3)(a)of those Regulations,]

(b) the actual value of the paid-up share capital of the ICAV shall be at all times equal to the value of the assets of the ICAV after deduction of its liabilities,

(c) the shares of the ICAV shall, at the request of any of the shareholders, be purchased by the ICAV directly or indirectly out of the ICAV assets unless and to the extent as may be approved by the Bank and subject to such requirements as may be imposed by the Bank under this Act or any other enactment,

(d) the share capital of the ICAV shall be equal to the value for the time being of the issued share capital of the ICAV, and

(e) share capital is to be divided into a specified number of shares without assigning any nominal value to them.

(4) The Bank may specify additional matters that are to be provided for in the instrument of incorporation.

(5) In the case of a failure to comply with subsection (3) the persons who subscribed their names to the instrument of incorporation each commit a category 2 offence.

F6[(6) As respects an ICAV formed before the commencement ofsection 44of theInvestment Limited Partnerships (Amendment) Act 2020and authorised under theUCITS Regulations—

(a) for a period of 12 months following the commencement ofsection 44of theInvestment Limited Partnerships (Amendment) Act 2020, the provisions ofsection 5and this section, as they stood enacted before the commencement of that section, shall apply to the ICAV, and

(b) only on and from the expiry of that period of 12 months shall the provisions ofsection 5and this section, as they stand amended by thatsection 44of theInvestment Limited Partnerships (Amendment) Act 2020, apply to the ICAV.]

7.. Registered office and head office

7. (1) An ICAV shall, at all times, have a registered office in the State to which all communications and notices may be addressed.

(2) An ICAV shall give notice in writing of any change in the situation of the registered office or head office of the ICAV, within 14 days after the date of the change, to the Bank which shall record that change.

(3) If an ICAV fails to comply with subsection (1), the ICAV and any officer of it who is in default commits a category 2 offence.

(4) If an ICAV fails to comply with subsection (2), the ICAV and any officer of it who is in default commits a category 3 offence.

8.. Carrying on of business

8. (1) No business shall be carried on by an ICAV that is not an authorised ICAV.

(2) The business carried on by an authorised ICAV shall be confined to activities permitted to be carried on by—

(a) in the case of an ICAV authorised under section 19, this Act and, where applicable, the AIFM Regulations, or

(b) in the case of an ICAV authorised under the UCITS Regulations, those Regulations.

(3) If an ICAV fails to comply with subsection (1) or (2), the ICAV and any officer of it who is in default commits a category 1 offence.

8A. F7[Capacity not limited by an ICAV’s instrument of incorporation

8A.(1) The validity of an act done by an ICAV shall not be called into question on the ground of lack of capacity by reason of anything contained in the ICAV’s instrument of incorporation.

(2) Nothing insubsection (1)affects the duty of the directors of an ICAV to observe any limitation on their powers.]

8B. F8[Effect of instrument of incorporation

8B.(1) Subject to the provisions of this Act, the instrument of incorporation shall, when registered, bind the ICAV and the members of it to the same extent as if it had been signed and sealed by each member, and contained covenants by the ICAV and each member to observe all the provisions of the instrument of incorporation and each provision of this Act, relating to Irish collective asset-management vehicles, that is applicable to the ICAV.

(2) All money payable by any member to the ICAV under the instrument of incorporation shall be a debt due from him or her to the ICAV.

(3) An action to recover a debt created by this section shall not be brought after the expiration of 12 years after the date on which the cause of action accrued.]

PART 2 Registration and Authorisation of ICAVs etc.

Chapter 1

9.. Registration order

9. (1) This Chapter enables the Bank to make a registration order in respect of an ICAV.

(2) A registration order operates to effect the incorporation of the ICAV under section 15.

10.. Application for registration order

10. (1) To obtain a registration order in respect of a proposed ICAV an application shall be made to the Bank.

(2) The application shall—

(a) be made in writing in such manner and form as may be specified by the Bank,

(b) contain—

(i) the instrument of incorporation (subscribed to as mentioned in section 6(2)) in respect of the ICAV, and

(ii) a statement that complies with section 11,

and

(c) contain or be accompanied by such other information as the Bank may specify for the purpose of determining the application.

(3) At any time after receiving an application and before determining it the Bank may by notice in writing require the person who made the application to provide additional information to it.

(4) Different requirements may be specified by the Bank for the purposes of subsection (2)(a) and (c) in relation to different classes of applications.

(5) The Bank may specify that information provided to it in compliance with subsection (1) or (2) be certified or attested as to its authenticity or correctness in such manner as the Bank may specify, including by statutory declaration.

(6) A person commits a category 2 offence if—

(a) for the purposes of or in connection with any application under this section, or

(b) in purported compliance with any requirement imposed on the person by or under this section,

the person provides information that is false or misleading in a material particular, knowing it to be so false or misleading or being reckless as to whether it is so false or misleading.

11.. Contents of statement required by section 10(2)(b)(ii)

11. (1) A statement complies with this section if the following conditions are met.

(2) The first condition is that the statement is in writing and contains the name and the particulars specified in subsection (3) in relation to—

(a) the persons who are to be the first directors of the ICAV,

(b) the person who is, or the persons who are, to be the first secretary or joint secretaries of the ICAV, and

(c) the situation of the ICAV’s head office and registered office.

(3) The particulars referred to in subsection (2) are—

(a) in relation to a person named as a director of the ICAV—

(i) all particulars which are, in relation to a director, required pursuant to subsection (2) of section 65 to be contained in the register kept under that section, and

(ii) if the person is disqualified under the law of a country or territory other than the State (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, the particulars which are required by section 66(1) to be stated in a notification under section 65(6),

and

(b) in relation to a person named as secretary, or as one of the joint secretaries, all particulars which are, in relation to the secretary or each joint secretary, required pursuant to subsection (4) of section 65 to be contained in the register kept under that section.

(4) The second condition is that the statement is signed by or on behalf of the subscribers to the instrument of incorporation and is accompanied by a consent signed by each of the persons named in the statement as a director, secretary or joint secretary to act in that capacity.

(5) The third condition is that where the application for the making of a registration order is made by a person as agent for the subscribers to the instrument of incorporation the statement so specifies and gives the name and address of the agent.

(6) The persons who are specified in the statement as the directors, secretary or joint secretaries of the ICAV shall, on the incorporation of the ICAV, be deemed to have been appointed as the first directors, secretary or joint secretaries of the ICAV, and any indication in the instrument of incorporation, as delivered to the Bank under this Part, specifying a person as a director, secretary or joint secretary of an ICAV shall be void unless such person is specified as a director, secretary or joint secretary in the statement.

12.. Making of registration order

12. (1) On an application being made to it under section 10, the Bank shall make a registration order in respect of an ICAV if—

(a) it is satisfied that—

(i) the application complies with that section,

(ii) the ICAV will, on the coming into operation of the order, comply with section 13,