IRISH COLLECTIVE ASSET-MANAGEMENT VEHICLES ACT 2015

• (c) a person who was a member or an officer of the ICAV at its date of dissolution, or

• (d) a person who, at the date of its dissolution, had an entitlement (disregarding any right of the directors to decline to register the person as such) to be registered as a member of the ICAV by virtue of—

• (i) the execution, in the person’s favour, of an instrument of transfer of a share, or

• (ii) the transmission, by operation of law, to the person of a right to a share.

• (3) Subject to a supplementary order made under section 172(c), the ICAV shall be deemed to have continued in existence as if it had not been struck off the register of ICAVs upon the Bank receiving a certified copy of the order under subsection (1) within 28 days after the date of its perfection.

169. Requirements for application to High Court under section 168

169. (1) An application under section 168 shall be made on notice to the Bank, and the Revenue Commissioners.

• (2) In the case of an application under section 168 by a creditor, the application shall in addition be made on notice to—

• (a) the Bank,

• (b) such officers of the ICAV at the date of dissolution whose names are known, or ought reasonably to be known, by the creditor, and

• (c) such other members or officers of the ICAV at the date of dissolution as the Bank, the Revenue Commissioners, upon being notified of the application, indicate in writing should be joined as notice parties to the application.

170. Terms of High Court order on application under section 168

170. (1) In making an order under section 168 on the application of a member or an officer of the ICAV, the High Court shall, unless reason to the contrary is shown to the satisfaction of the High Court, make it a term of the order that the order shall not have effect unless, within a specified period, the ICAV appoints 2 directors and delivers to the Bank the notification and consent required by section 65(6) and (8).

• (2) For the avoidance of doubt,subsection (1) requires, unless reason to the contrary there mentioned is shown, the order of the High Court to specify that a thing set out in subsection (1) is to be done (save where it has already been done) notwithstanding that the ground on which the ICAV had been struck off the register of ICAVs did not relate to that thing.

• (3) In making an order under section 168 on the application of a creditor of the ICAV, the High Court shall direct that, within a specified period (save where it has already been done) such specified members or officers take all reasonable steps to ensure that the ICAV appoints at least 2 directors and delivers to the Bank the notification and consent required by section 65(6) and (8).

• (4) For the avoidance of doubt,subsection (3) requires the order of the High Court to specify that a thing set out in that subsection is to be done (save where it has already been done) notwithstanding that the ground on which the ICAV had been struck off the register of ICAVs did not relate to that thing.

• (5) In making an order under section 168 on the application of a creditor of the ICAV, the High Court may award the applicant the costs of the application against the ICAV.

171. High Court order for restoration on application of Bank

171. (1) On an application by the Bank in accordance with subsection (2), the High Court may order that an ICAV that has been struck off the register of ICAVs be restored to the register of ICAVs if—

• (a) the application is made within the period of 2 years after the date of dissolution of the ICAV, and

• (b) it is just and equitable to do so.

• (2) An application under this section shall be made on notice to each person who, to the knowledge of the Bank, was an officer of the ICAV at the date of its dissolution.

• (3) On the making of the order, the ICAV shall be deemed to have continued in existence as if it had not been struck off.

• (4) In making an order under this section, the High Court may award the Bank the costs of the application against the ICAV restored to the register of ICAVs.

172. Supplementary High Court orders

172. In ordering that an ICAV be restored to the register of ICAVs under section 168 or 171, the High Court may do any of the following:

• (a) except to the extent that the High Court makes an order under paragraph (c), give such directions as it thinks fit for placing the ICAV and all other persons as nearly as possible in the same position as if the ICAV had not been struck off the register of ICAVs;

• (b) direct the ICAV to change its name if the name of the ICAV is too similar to the name of another ICAV already on the register of ICAVs;

• (c) if and to the extent that it thinks fit, order that the officers of the ICAV, or any one or more of them as specified in the order, shall be liable for a debt or liability incurred by or on behalf of the ICAV during the period when it stood struck off the register of ICAVs;

• (d) make any other order that it thinks fit.

PART 12 Investigations, Compliance and Enforcement

173. Investigations

173. (1) The provisions of Part 13 of the Companies Act 2014, and the other provisions of that Act relating to investigations of companies, apply, subject to necessary modifications and the specific modifications specified in subsection (2), in relation to an ICAV as if it were an investment company.

• (2) The modifications are the following:

• (a) references to a body corporate include a company;

• (b) the references in sections 752 to 757 to agents include depositaries and trustees within the meaning of the UCITS Regulations;

• (c) in section 755(2)(a) for the words after “ agreement” there is substituted a reference to a transaction within section 75(1) of this Act and in section 755(4) for the reference to section 220 there is substituted a reference to section 77 of this Act;

• (d) the duty in section 759(1) to provide a copy of an inspector’s report to the Director of Corporate Enforcement includes a duty to forward a copy to the Bank (so that section 759(2)(b)(vi) does not apply);

• (e) the reference in section 763(1) to Chapter 5 of Part 5 is to section 82 of this Act;

• (f) the references to the Registrar in sections 765(4) and 770 are to the Bank;

• (g) the reference in section 785(4) to section 286 is to section 114 of this Act.

174. Compliance orders

174. (1) This section applies if an ICAV or an officer of an ICAV—

• (a) has failed to comply with a provision of this Act, and

• (b) the ICAV or officer has failed to remedy the default within 14 days (or such longer period as may be specified in the notice) after the date of service by any person referred to in subsection (3) on the ICAV or officer of a notice requiring the ICAV or officer to remedy the default.

• (2) In any case to which this section applies, the High Court, on the application of a person specified in subsection (3), may order the ICAV or officer in default to remedy the default within such time as the High Court specifies.

• (3) The High Court may make the order only on the application of one of the following:

• (a) any member of the ICAV;

• (b) any creditor of the ICAV;

• (c) the Director of Corporate Enforcement.

• (4) In making an order under subsection (2), the High Court may order that the ICAV or the officer responsible for the default pay all costs of and incidental to the application.

• (5) Subject to subsection (6), no order may be made under this section in relation to a default that, in the opinion of the High Court, constitutes a wrong done to the ICAV an action in respect of which, under the general law, is maintainable by the ICAV alone, as distinct from another by derivative proceedings.

• (6) Subsection (5) does not apply if the facts constituting the default in question amount, in the opinion of the High Court, to the commission of an offence.

• (7) Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties (including restriction or disqualification) on an ICAV or its officers in respect of the default in question.

• (8) In this section “officer” means director, shadow director, promoter, receiver, liquidator, auditor or secretary.

175. Restraining directors and others from removing assets

175. (1) The High Court may make an order restraining a director or other officer of an ICAV, or an ICAV, from—

• (a) removing his or her or the ICAV’s assets from the State, or

• (b) reducing his or her or the ICAV’s assets within or outside the State below an amount specified in the order.

• (2) The High Court may make the order if it is satisfied that—

• (a) the applicant has a qualifying claim, and

• (b) there are grounds for believing that the director or officer, or the ICAV, may remove or dispose of his or her assets or the assets of the ICAV with a view to evading his or her obligations or those of the ICAV and frustrating an order of the High Court.

• (3) The High Court may make the order only on the application of—

• (a) the ICAV,

• (b) a director, member, liquidator, receiver or creditor of the ICAV, or

• (c) the Director of Corporate Enforcement.

• (4) In subsection (2)(a) “qualifying claim” means a claim that—

• (a) is a substantive civil cause of action or right to seek a declaration of personal liability or to claim damages against the director, officer or ICAV, and

• (b) arises—

• (i) under this Act,

• (ii) under the instrument of incorporation of the ICAV, or

• (iii) from the holding of an office of the ICAV.

176. Agency with responsibility for enforcement of offences

176. (1) The Bank may instigate summary proceedings for offences under sections 6(5), 7(3) and (4), 8(3), 10(6), 18(6), 21(5), 22(4), 28(3), 30(2), 31(3) and (5), 33(3), 36(2), 39(4), 42(3), 43(4), 46(4), 49(4), 50(5), 55(7), 66(4) and (5), 75(4), 95(3), 100(5), 102(4), 114(1) and (2), 116(10), 117(9), 118(7), 120(4), 128(2), 135(5), 138(9), 141(5), 152(5) and 165(5).

• (2) The Director of Corporate Enforcement may instigate summary proceedings for offences under sections 63(1), 64(4), 68(3), 70(3), 71(3), 81(11) and (12), 82(3), 83(10) and (11), 88(5) and 89(8).

• (3) Either the Bank or the Director of Corporate Enforcement may instigate summary proceedings for offences under sections 122(6) and 124(2).

177. District court district within which summary proceedings may be brought

177. (1) Summary proceedings against an ICAV or an officer of an ICAV acting in his or her capacity as such (or a person purporting to so act) for an offence under this Act may be brought, heard and determined—

• (a) before and by a judge of the District Court as provided for under section 79 or 79A of the Courts of Justice Act 1924, or

• (b) before and by a judge of the District Court for the time being assigned to the district court district in which the registered office of the ICAV is situated immediately prior to the commencement of the proceedings.

• (2) In this section “officer of an ICAV” includes a director, shadow director, promoter, auditor, receiver, liquidator or secretary of an ICAV.

• (3) For the purposes of this section, the place for the time being recorded by the Bank as the situation of the registered office of the ICAV shall be deemed to be the registered office of the ICAV notwithstanding that the situation of its registered office may have changed.

178. Application of other provisions relating to offences

178. (1) Sections 867 and 870 of the Companies Act 2014 shall apply in relation to offences under this Act as in relation to offences under that Act.

• (2) Section 868 of that Act shall apply in relation to an ICAV as in relation to a company.

• (3) Section 872 of that Act shall apply as if references to that Act included this Act.

• (4) Section 873 of that Act shall apply as if the reference to a category 3 or 4 offence within the meaning of that Act included a category 3 offence under this Act.

179. Special provisions applying where default in delivery of documents to Bank

179. (1) The Bank may deliver a notice that complies with subsection (2) to a person if the Bank has reasonable grounds for believing that the person is in default in the production or delivery to, or filing with, the Bank of a document required under this Act (being a default that constitutes a category 3 offence).

• (2) The notice referred to in subsection (1) is a notice that—

• (a) is in the form specified by the Bank,

• (b) states that the person has failed to produce or deliver to, or file with, the Bank a document required under a specified provision of this Act,

• (c) states that the person to whom the notice is delivered may during a period of 21 days beginning after the date of the notice, or such greater period as may be specified in the notice—

• (i) remedy the default, and

• (ii) pay to the Bank an amount specified by the Bank which shall be accompanied by the notice,

and

• (d) states that a prosecution of the person to whom the notice is delivered—

• (i) will not be instituted during the period referred to in paragraph (c), and

• (ii) will not be instituted in any event if, within the period referred to in paragraph (c), the default is remedied and payment is made in accordance with the notice.

• (3) Where a notice is delivered under subsection (1) —

• (a) a person to whom it is delivered may, during the period specified in the notice, make to the Bank payment of the amount specified in the notice, accompanied by the notice,

• (b) the Bank may receive the payment and issue a receipt for it and no payment so received shall in any circumstances be recoverable by the person who made it, and

• (c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice and if the default is remedied to the satisfaction of the Bank and payment of the amount specified in the notice is made during that period, no prosecution in respect of the alleged offence shall be instituted in any event.

• (4) In a prosecution for an offence to which this section applies, the defendant shall bear the onus of showing that a payment pursuant to a notice under this section has been made.

• (5) All payments made to the Bank in pursuance of this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Public Expenditure and Reform may direct.

• (6) If the person mentioned in subsection (1) is an ICAV, then that subsection authorises the delivery of the notice mentioned in it to an officer of the ICAV but, where the notice is delivered to that officer, the second reference in that subsection to person, and each reference in subsections (2) and (3) to the person to whom the notice is delivered or otherwise to person, is to be read as a reference to the ICAV.

180. General Offences

180. (1) Section 876(1) and (3), 877 and 878 of the Companies Act 2014, and other provisions of that Act relating to those provisions, have effect as if—

• (a) the references to a company included an ICAV, and

• (b) the references to that Act included this Act.

• (2) In its application in relation to the provisions mentioned in subsection (1) as they have effect in accordance with that subsection, section 865 of the Companies Act 2014 has effect as if the reference to the Director of Corporate Enforcement included the Bank.

181. Evidential matters

181. (1) Sections 879 to 886 of the Companies Act 2014 have effect as if references to that Act (or Parts 1 to 15 of that Act) included this Act.

• (2) In the application of section 886(6) in relation to a declaration that purports to be made in pursuance of or for the purposes of—

• (a) this Act, or

• (b) a provision of that Act in its application by virtue of this Act,

the references to the Registrar are to the Bank.

PART 13 Miscellaneous

182. Registration and inspection of documents

182. (1) Every document relating to an ICAV that is required to be deposited with, or sent or furnished or otherwise provided to, the Bank under this Act or the Companies Act 2014 as it applies in relation to the ICAV—

• (a) shall be recorded on a register relating to the ICAV maintained by the Bank, and

• (b) shall be open to inspection free of charge on a web-site maintained or used by the Bank.

• (2) The register maintained in compliance with subsection (1) is in addition to the registers maintained under section 14 or 98 or by virtue of section 86 or 87.

• (3) Documents provided—

• (a) under Chapter 2 of Part 2 (or pursuant to a condition imposed under section 27),

• (b) under section 147(2)(d),

• (c) by virtue of section 173(2)(d),

• (d) by virtue of section 183, or

• (e) by virtue of section 189,

shall not be recorded on the register maintained in compliance with subsection (1) or be open to inspection under that subsection.

183. Mergers involving ICAV

183. (1) An ICAV authorised under the UCITS Regulations may, in accordance with the provisions of the UCITS Regulations, merge with any other UCITS.

• (2) An ICAV authorised under UCITS Regulations which is the merging UCITS in relation to a merger for the purposes of the UCITS Regulations which involves the transfer of all its assets and liabilities to another UCITS (or a sub-fund of another UCITS) in the course of the merger shall, in accordance with the provisions of the UCITS Regulations, be dissolved without winding up on the coming into effect of the merger.

• (3) An ICAV authorised under section 19 may merge with any other form of collective investment vehicle in accordance with any conditions imposed by the Bank.

• (4) An ICAV authorised under section 19 which transfers all of its assets and liabilities to another collective investment vehicle (or a sub-fund of another collective investment vehicle) in accordance with conditions imposed by the Bank shall be dissolved without winding up on the coming into effect of the merger.

184. Taxation

184. Section 739B of the Taxes Consolidation Act 1997 is amended in subsection (1), in the definition of “investment undertaking”—

• (a) by deleting “and” after paragraph (b), and

• (b) by inserting the following after paragraph (c):

“and

• (ca) an authorised ICAV (within the meaning of the Irish Collective Asset-management Vehicles Act 2015);”.

185. Fees

185. Fees shall be payable in accordance with section 32E of the Central Bank Act 1942 in respect of the performance by the Bank of its functions under this Act.

186. Categories of offences

186. (1) A person guilty of an offence under this Act that is stated to be a category 1 offence is liable—

• (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or to both, or

• (b) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 10 years, or to both.

• (2) A person guilty of an offence under this Act that is stated to be a category 2 offence is liable—

• (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or to both, or

• (b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or to both.

• (3) A person guilty of an offence under this Act that is stated to be a category 3 offence is liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or to both.

• F28[(4) A person guilty of an offence under this Act that is stated to be a category 4 offence is liable, on summary conviction, to a class A fine.]

187. Amendments of UCITS Regulations

187. The UCITS Regulations are amended—

• (a) in Regulation 3(1) —

• (i) by inserting the following definitions:

“ ‘Act of 2015’ means the Irish Collective Asset-management Vehicles Act 2015;”, and

“ ‘ICAV’ means an ICAV within the meaning of the Act of 2015;”,

• (ii) in the definition of “articles”, by inserting “and, in relation to an ICAV, means its instrument of incorporation within the meaning of the Act of 2015” at the end,

• (iii) in the definition of “directors”, by inserting “and includes directors and shadow directors of an ICAV” at the end, and

• (iv) by substituting for the definition of “investment company” the following:

“ ‘investment company’ means—

• (a) an investment company with fixed capital,

• (b) an investment company with variable capital, or

• (c) except in Regulations 45, 89(4)(a) and 107, an ICAV;”,

and

• (b) in Regulation 4(6) by—

• (i) deleting “or” after subparagraph (c), and

• (ii) substituting the following for subparagraph (d):

• “(d) common contractual funds, or

• (e) Irish collective asset-management vehicles.”.

188. Adaptation of certain provisions of UCITS Regulations

188. (1) Regulations 17(11), 42(4) (d), 104(2), 125 to 127, 131, 134(1) to (9) and 135(1) and (2) of the UCITS Regulations apply to an ICAV authorised under section 19 as they apply to the bodies to which those Regulations relate but subject to the modifications in subsection (2).

• (2) The modifications are that—

• (a) references to repurchase are to purchase,

• (b) references to the UCITS Regulations are to this Act,

• (c) references to an UCITS are to an ICAV,

• (d) references to a unit are to a share,

• (e) references to a unit-holder are to a shareholder, and

• (f) references to the Companies Acts include this Act.

• (3) References to cognate terms or expressions in those Regulations shall be read accordingly.

189. Amendments of Central Bank Act 1942

189. The Central Bank Act 1942 is amended—

• (a) in section 33AK(3) by inserting the following after paragraph (a)(vi)(II):

“or

• (III) the Irish Collective Asset-management Vehicles Act 2015,”,

and

• (b) in Part 1 of Schedule 2 by inserting the following:

“

43	No._of 2015	Irish Collective Asset-management Vehicles Act 2015	The whole Act, apart from Parts 5, 10 and 12

”.

190. Exemption from liability void

190. (1) Subject as follows, any provision whether contained in the instrument of incorporation of an ICAV or in any contract with an ICAV or otherwise for exempting any officer of the ICAV or any person employed by the ICAV as auditor from, or indemnifying him or her against, any liability which by virtue of any rule of law would otherwise attach to him or her in respect of any negligence, default, breach of duty or breach of trust of which he or she may be guilty in relation to the ICAV is void.

• (2) An ICAV may, in pursuance of any provision referred to in subsection (1), indemnify any such officer or auditor against any liability incurred in defending proceedings, whether civil or criminal, in which judgment is given in his or her favour or in which he or she is acquitted.

• (3) An ICAV may purchase and maintain for any of its officers or auditors insurance in respect of any liability referred to in subsection (1) .

• (4) Despite any provision contained in an enactment, the instrument of incorporation of an ICAV or otherwise, a director may be counted in the quorum and may vote on any resolution to purchase or maintain any insurance under which the director might benefit.

• (5) In this section a reference to an officer or auditor includes any former or current officer or auditor of the ICAV.

191. Notice, etc.

191. Where a notice, direction or other document is authorised or required by or under this Act to be served on a person, it may, unless otherwise specified in this Act, and in addition to the methods specified in section 61G(1) of the Central Bank Act 1942, be served to or on a natural person, body corporate or partnership, electronically, that is to say by electronic mail to an email address, or to a facsimile number, furnished by the person for that purpose to the Bank.

192. Director of Corporate Enforcement

F29[192. (1) Sections 944P, 944Q and 944W of the Companies Act 2014 have effect as if references in those sections to that Act included this Act.

• (2) Without prejudice to the generality of subsection (1), and in addition to the functions under section 944D of the Companies Act 2014, the Corporate Enforcement Authority may perform the functions conferred on the Corporate Enforcement Authority by this Act and do such acts or things as are necessary or expedient in the performance of those functions.]

SCHEDULE Accounts

Section 116

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Footnotes