S.I. No. 349/2016 - European Union (Market Abuse) Regulations 2016

• (b) an appeal under Regulation 40 against the adverse assessment (including the specified sanctions) has been lodged with the Court within the period for lodging the appeal but is withdrawn or abandoned,

then the specified sanctions pursuant to Regulation 41(1)(a) to (l), as confirmed or varied in the order, if any, obtained under Regulation 45(2)(a), shall take effect on the date of that order or such other date as the Court may specify in that order.

• (2) Where an appeal under Regulation 40 against the adverse assessment is lodged with the Court within the period for lodging the appeal, then the specified sanctions pursuant to Regulation 41(1)(a) to (l), as confirmed or varied in the order, if any, obtained under Regulation 40(4)(a), shall take effect on the date of that order or such other date as the Court may specify in that order.

Enforcement of adverse assessment (including specified sanctions)

45.

• (a) no appeal under Regulation 40 against the adverse assessment is lodged with the Court within the period for lodging the appeal, or

• (b) an appeal under Regulation 40 against the adverse assessment has been lodged with the Court within the period for lodging the appeal but is withdrawn or abandoned,

then the Bank may apply to the Court for an order confirming the adverse assessment (including the specified sanctions).

• (2) The Court shall determine an application under paragraph (1) by making—

• (a) an order confirming, varying or setting aside the adverse assessment (including the specified sanctions), whether in whole or in part, or

• (b) an order remitting the case to be decided again by the Bank in accordance with the directions of the Court.

• (3) The Court shall not hear an application under paragraph (1) unless—

• (a) the assessee appears at the hearing as respondent to the application, or

• (b) if the assessee does not so appear, the Court is satisfied that a copy of the application has been served on the assessee.

• (4) If the Court is satisfied that it is desirable that the whole or part of proceedings relating to an application under paragraph (1) be heard otherwise than in public because of the nature or the circumstances of the case or having regard to the interests of justice then the Court may make an order that the proceedings shall, in whole or part, be heard otherwise than in public.

• (5) The Court may, on an application under paragraph (1), make such interim or interlocutory orders as the Court considers necessary in the circumstances.

• (6) The determination of the Court on the hearing of an application under paragraph (1) shall be final, except that the Bank or the respondent, if any, may apply to the Court of Appeal to review the determination on a question of law.

• (7) For the avoidance of doubt, it is declared that no variation of an adverse assessment under paragraph (2)(a) may provide for the imposition of a sanction on the assessee that is not a sanction referred to in Regulation 41(1)(a) to (l).

Publication of decisions to impose specified sanctions

46.

• (a) information relating to the type and nature of the prescribed contravention, and

• (b) the identity of the assessee.

• (2) Where the Bank considers that the disclosure of the identity of an assessee in accordance with paragraph (1)(a), or the personal data of an assessee where it is a natural person, would be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data, or would jeopardise an ongoing investigation or the stability of the financial markets, it shall either—

• (a) defer publication of the specified sanction or the identity of the assessee until the reasons for that deferral cease to exist,

• (b) publish the decision on an anonymous basis, provided such publication ensures the effective protection of the personal data concerned, or

• (c) not publish the decision where the Bank is of the opinion that publication in accordance with subparagraph (a) or (b) would be insufficient to ensure—

• (i) that the stability of financial markets is not jeopardised, or

• (ii) the proportionality of the publication of the decision where the sanctions concerned are deemed to be of a minor nature.

• (3) Where the Bank decides to publish a decision on an anonymous basis in accordance with paragraph (2)(b), it may postpone the publication of the relevant data for a reasonable period of time where it is foreseeable that the reasons for anonymous publication will cease to exist during that period.

• (4) Where an adverse assessment is confirmed, varied or set aside by an order of the Court under Regulation 40(4)(a) or 45(2)(a), or the case is remitted to be decided by the Bank under Regulation 40(4)(b) or 45(2)(b), the Bank shall publish on its website information relating to such orders and any subsequent decision of the Bank relating to the case.

• (5) The Bank shall ensure that a decision published in accordance with paragraph (1) shall remain accessible on its website for a period of not less than 5 years after its publication, provided that any personal data contained in such publication shall be kept on the website for such period as is necessary in accordance with the Data Protection Acts 1998 and 2003.

Person not liable to be penalised twice for same contravention

47.

• (a) a sanction referred to in Regulation 41(1)(j), (k) or (l) has been or is to be imposed on an assessee by virtue of an order obtained under Regulation 40(4)(a) or 45(2)(a), and

• (b) the acts that constitute the prescribed contravention to which the sanction relates also constitute an offence under a law of the State,

then the assessee shall not, in respect of those acts, be liable to be prosecuted or punished for that offence under that law.

• (2) A sanction referred to in Regulation 41(1)(j), (k) or (l) in respect of a prescribed contravention shall not be imposed on an assessee where—

• (a) the assessee has been found guilty or not guilty of having committed—

• (i) an offence under a provision of these Regulations, or

• (ii) an offence referred to in section 1368 of the Companies Act 2014 , and

• (b) all or some of the acts constituting that offence also constitute the prescribed contravention.

Person not to be concerned in management of regulated financial service provider while disqualified

48.

Power of the Bank to resolve certain contraventions etc.

49.

• (2) An agreement entered into under paragraph (1)—

• (a) is binding on the Bank and the relevant party, and

• (b) may include terms under which the relevant party accepts the imposition of sanctions.

• (3) An agreement entered into under paragraph (1) may be enforced by the Bank or the relevant party in a court of competent jurisdiction.

False etc. information

50.

• (a) gives the Bank a notification pursuant to a requirement under the Market Abuse Regulation, or

• (b) gives the assessor information pursuant to a requirement under Part 5, that the person knows is false or misleading in a material particular, or that the person does not believe to be true,

shall be guilty of an offence and liable upon summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

PART 6 FINAL PROVISIONS

Amendment of Central Bank Act 1942

51.

• (a) in section 2(2A) by the substitution of the following paragraphs for paragraphs (w) and (x) (inserted by Regulation 7 of the European Union (Requirements for Credit Transfers and Direct Debits in Euro) (Amendment) Regulations 2016 ( S.I. No. 204 of 2016 )):

• “(w) the SRM Regulation;

• (x) Regulation (EU) No. 260/2012 of the European Parliament and of the Council of 14 March 2012⁸ ;

• (y) Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC⁹ ;

• (z) Commission Delegated Regulation (EU) 2016/522 of 17 December 2015¹⁰ ;

• (aa) Commission Delegated Regulation (EU) 2016/908 of 26 February 2016¹¹ ;

• (ab) Commission Delegated Regulation (EU) 2016/909 of 1 March 2016¹² ;

• (ac) Commission Delegated Regulation (EU) 2016/957 of 9 March 2016¹³ ;

• (ad) Commission Delegated Regulation (EU) 2016/958 of 9 March 2016¹⁴ ;

• (ae) Commission Delegated Regulation (EU) 2016/523 of 10 March 2016¹⁵ ;

• (af) Commission Delegated Regulation (EU) 2016/347 of 10 March 2016¹⁶ ;

• (ag) Commission Delegated Regulation (EU) 2016/378 of 11 March 2016¹⁷ ;

• (ah) Commission Delegated Regulation (EU) 2016/959 of 17 May 2016¹⁸ ;

• (ai) Commission Delegated Regulation (EU) 2016/960 of 17 May 2016¹⁹ ;

• (aj) Commission Delegated Regulation (EU) 2016/1052 of 8 March 2016²⁰ ;

• (ak) Commission Implementing Regulation (EU) 2016/1055 of 29 June 2016²¹ ;

• (b) in section 33AK(5)—

  • (i) in paragraph (ax) by the substitution of “actuaries, or” for “actuaries.”,

  • (ii) in subparagraph (ay)(vi) by the substitution of “other Member States, or” for “other Member States.”, and

  • (iii) by the insertion of the following paragraph:

• “(az) to the Workplace Relations Commission in accordance with Part 3 of the European Communities (Market Abuse) Regulations 2016 ( S.I. No.349 of 2016 ).”;

  • (c) in section 33AK(10) by the substitution of the following paragraph for paragraphs (f) and (g) in the definition of “supervisory EU legal acts”:

• “(f) Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC,

• (g) Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) and Commission Implementing Directive (EU) 2015/2392 of 17 December 2015 on Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards reporting to competent authorities of actual or potential infringements of that Regulation,”;

  • (d) in section 33AN—

  • (i) by the substitution of the following for “or Title II of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 201216” in the definition of “designated enactment”

  “, Title II of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 201216 or Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014;”, and

  • (ii) by the substitution of the following for “Market Abuse (Directive 2003/6/EC) Regulations 2005 ( S.I. No. 342 of 2005 )” in the definition of “designated statutory instrument”:

  “European Union (Market Abuse) Regulations 2016 ( S.I. No. 349 of 2016 )”;

• (e) in Part 2 of Schedule 2 by the substitution of the following for item 41:

“

41	S.I. No. 349 of 2016	European Union (Market Abuse) Regulations 2016	The whole instrument

.”.

Amendment of Communications (Retention of Data) Act 2011

52.

“6. An offence under Regulation 5 or 7 of the European Union (Market Abuse) Regulations 2016.”.

Amendment of European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006

53.

• “(a) Regulation (EU) 596/2014 of the European Parliament and of the Council of 16 April 2014,”

Repeal and revocation

54.

GIVEN under my Official Seal,

30 June 2016.

MICHAEL NOONAN,

Minister for Finance.

Footnotes