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21 2004

Central Bank and Financial Services Authority of Ireland Act 2004

SCHEDULE 2

Amendment of European Communities Regulations Consequential on Insertion of Part IIIC of Central Bank Act 1942

Section 10(3) .

PART 1

Amendment of European Communities (Non-Life Insurance) Regulations 1976 (S.I. No. 115 of 1976)

Item

Provision affected

Amendment

1.

Article 12

Substitute the following sub-articles for sub-articles (2) and (3):

 

 

“(2) A decision of the Bank refusing an application for an authorisation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .

 

 

(3) A failure of the Bank to deal with an application for an authorisation within 6 months after the date on which the Bank received the application is taken to be an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

2.

Article 23

Substitute the following sub-article for sub-article (6):

 

 

“(6) A decision of the Bank to revoke an authorisation or to suspend the business of an undertaking is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

 

PART 2

Amendment of European Communities (Life Assurance) Regulations 1984 (S.I. No. 57 of 1984)

Item

Provision affected

Amendment

1.

Article 13

Substitute the following sub-articles for sub-articles (2) and (3):

 

 

“(2) A decision of the Bank refusing an application for an authorisation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .

 

 

(3) A failure of the Bank to deal with an application for an authorisation within 6 months after the date on which the Bank received the application is taken to be an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

2.

Article 25

Substitute the following sub-article for sub-article (6):

 

 

“(6) A decision of the Bank to revoke an authorisation or to suspend the business of an undertaking is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

 

PART 3

Amendment of European Communities (Non-Life Insurance) (Amendment) (No. 2) Regulations 1991 (S.I. No. 142 of 1991)

Item

Provision affected

Amendment

1.

Article 14

Substitute the following paragraph for paragraph (d) of sub-article (3):

 

 

“(d) A decision of the Bank refusing an application by an undertaking for a certificate referred to in subparagraph (a) or (b) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

2.

Article 15

Substitute the following sub-article for sub-article (7):

 

 

“(7) A decision of the Bank refusing an application for an authorisation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

3.

Article 17

Substitute the following paragraph for paragraph (b) of sub-article (7):

 

 

“(b) A decision of the Bank adopting any measure specified in sub-articles (2) to (6) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

 

PART 4

Amendment of European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992)

Item

Provision affected

Amendment

1.

Regulation 14

Substitute the following paragraph for paragraph (12):

 

 

“(12) A direction issued under paragraph (10) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

2.

Regulation 18

In paragraph (3), substitute “17A” for “17” wherever occurring.

3.

Regulation 22

Substitute the following Regulation:

 

 

“Appeal against decision of Bank refusing to transmit certain information to be appealable.

22. A decision of the Bank under Regulation 21 refusing to transmit the relevant information to the competent authority of the Member State concerned is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

4.

Regulation 27

Substitute the following paragraph for paragraphs (5) to (9):

 

 

“(5) A direction issued to an institution under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

5.

Regulation 29

(a) Substitute the following paragraph for paragraph (3):

 

 

“(3) A direction issued to an institution under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

 

 

(b) Substitute the following paragraph for paragraphs (5) and (6):

 

 

“(5) If the Commission issues a direction, as provided for under paragraph 7 of Article 21 of the Directive, that the measures in question should be amended, suspended or terminated, the Bank shall comply with that direction without delay.”.

6.

Regulation 30

Delete “or seeks an order of the Court under Regulation 27”.

 

PART 5

Amendment of European Communities (Non-Life Insurance) Framework Regulations 1994 (S.I. No. 359 of 1994)

Item

Provision affected

Amendment

1.

Article 5

Repeal the Article.

2.

Article 16

Substitute the following Article for Article 16:

 

 

“Failure to comply with technical reserves requirements.

16. (1) If an insurance undertaking whose head office is located in the State fails to comply with Article 13, the Bank may, after notifying the supervisory authorities of the Member States in which the risks underwritten by the undertaking exist, give the undertaking a direction in writing prohibiting the free disposal of the undertaking's assets.

 

 

 

(2) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the minimum amount required by Articles 3 and 4 of Part A of Annex II, the Bank shall give the undertaking a direction in writing requiring the undertaking to submit for the Bank's approval a plan for restoring the undertaking to a sound financial position.

 

 

 

(3) If, where sub-article (2) applies, it appears to the Bank that the financial position of an insurance undertaking is likely to deteriorate further, the Bank may give the undertaking a further direction in writing restricting or prohibiting the free disposal of the undertaking's assets.

 

 

 

(4) On giving such a direction, the Bank—

 

 

 

(a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and

 

 

 

(b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article.

 

 

 

(5) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the guarantee fund referred to in Part B of Annex II, the Bank—

 

 

 

(a) shall give to the undertaking a further direction in writing requiring the undertaking to submit for the Bank's approval a short-term finance scheme, and

 

 

 

(b) may include in the direction, or in another direction, a requirement restricting or prohibiting the undertaking from freely disposing of its assets.

 

 

 

(6) On giving a direction under subarticle (5), the Bank—

 

 

 

(a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and

 

 

 

(b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article.

 

 

 

(7) If the Bank has given a direction to an insurance undertaking in accordance with a provision of sub-articles (1) to (6), the Bank may give the undertaking such further directions as it thinks necessary to safeguard the interests of insured persons.

 

 

 

(8) If the supervisory authority of an insurance undertaking located in another Member State asks the Bank to take measures restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking located in the State, the Bank may give a direction in writing restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking that are located in the State.

 

 

 

(9) A direction or requirement given or imposed by the Bank under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

3.

Article 18

(a) Substitute the following paragraph for paragraph (c):

 

 

“(c) the Bank may give to the undertaking a direction in writing requiring the undertaking to take such further measures to safeguard the interests of persons insured by the insurance undertaking as are specified in the direction.”;

 

 

(b) Insert the following sub-article as sub-article (2) at the end of the Article:

 

 

“(2) The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942 :

 

 

(a) a decision of the Bank revoking the authorisation of an insurance undertaking under Article 17;

 

 

(b) a restriction or direction imposed or given by the Bank under sub-article (1).”.

4.

Article 20

Substitute the following sub-articles for sub-articles (6) to (8):

 

 

“(6) If the Bank reasonably believes that the control exercised by the person or persons referred to in sub-article (1) is likely to operate against the prudent and sound management of an insurance undertaking, it may, for the purposes of putting an end to that situation, give to the undertaking—

 

 

(a) a direction in writing suspending the voting rights attached to the shares held by the shareholders or members in question, or

 

 

(b) such other direction as it thinks fit.

 

 

(7) The Bank may also give a similar direction to persons who fail to comply with the notification requirements referred to in sub-article (1). If a holding is acquired contrary to this Article, the Bank may give to the persons concerned a direction in writing suspending the corresponding voting rights or the nullity of votes cast.

 

 

(8) A direction given by the Bank under this Article is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

5.

Article 28

Substitute the following sub-article for sub-article (8):

 

 

“(8) A decision of the Bank refusing or failing to provide the relevant information is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

6.

Article 46

Repeal the Article.

 

PART 6

Amendment of European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994)

Item

Provision affected

Amendment

1.

Article 5

Repeal the Article.

2.

Article 36

Substitute the following Article for Article 36:

 

 

“Failure to comply with technical reserves requirements (including mathematical reserves).

36. (1) If an insurance undertaking whose head office is located in the State fails to comply with Article 12, the Bank may, after notifying the supervisory authorities of the Member States in which the commitments underwritten by the undertaking exist, give the undertaking a direction in writing prohibiting it from freely disposing of its assets.

 

 

(2) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the minimum amount required under sub-article 2 (ii) of Article 7, the Bank shall give the undertaking a direction in writing requiring the undertaking to submit to the Bank for its approval a plan for restoring the undertaking to a sound financial position.

 

 

 

(3) If, where sub-article (2) applies, it appears to the Bank that the financial position of the insurance undertaking will deteriorate further, the Bank may give the undertaking a further direction in writing restricting or prohibiting the undertaking from freely disposing of the undertaking's assets.

 

 

 

(4) On giving a direction under subarticle (3), the Bank—

 

 

 

(a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and

 

 

 

(b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article.

 

 

 

(5) If the solvency margin of an insurance undertaking whose head office is located in the State falls below the guarantee fund referred to in Part B of Annex II, the Bank—

 

 

 

(a) shall give to the undertaking a further direction in writing requiring the undertaking to submit for the Bank's approval a short-term finance scheme, and

 

 

 

(b) may include in the direction, or in another direction, a requirement restricting or prohibiting the undertaking from freely disposing of its assets.

 

 

 

(6) On giving a direction under subarticle (5), the Bank—

 

 

 

(a) shall inform the supervisory authorities of the Member States in which the undertaking carries on insurance business that it has given the direction to the undertaking, and

 

 

 

(b) may ask those authorities to take measures in relation to the undertaking corresponding to those prescribed by this sub-article.

 

 

 

(7) If the Bank has given a direction to an insurance undertaking in accordance with a provision of sub-articles (1) to (6), the Bank may give the undertaking such further directions as it thinks necessary to safeguard the interests of insured persons.

 

 

 

(8) If the supervisory authority of an insurance undertaking located in another Member State asks the Bank to take measures restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking located in the State, the Bank may give a direction in writing restricting or prohibiting the undertaking from freely disposing of the assets of the undertaking that are located in the State.

 

 

 

(9) A direction or requirement given or imposed by the Bank under this section is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

3.

Article 38

Substitute the following Article for Article 38:

 

 

“Provisions applying in the case of revocation.

38. (1) On revoking an authorisation under Article 37, the Bank shall—

 

 

(a) inform the supervisory authorities of the other Member States in which the undertaking carries on business, and

 

 

 

(b) after consulting those authorities, give to the undertaking a direction in writing restricting the free disposal by the undertaking of its assets in accordance with Articles 36(1), 36(3) and 36(4).

 

 

 

(2) The Bank may impose such further measures as it considers necessary to safeguard the interests of persons insured by the insurance undertaking.

 

 

 

(3) The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942 :

 

 

 

(a) a decision revoking the authorisation of an insurance undertaking under Article 37;

 

 

 

(b) a direction or measure given or imposed under this Article.”.

4.

Article 40

Substitute the following sub-articles for sub-articles (6) to (8):

 

 

“(6) If the Bank reasonably believes that the control exercised by the person or persons referred to in sub-article (1) is likely to operate against the prudent and sound management of an insurance undertaking, it may, for the purposes of putting an end to that situation, give to the undertaking—

 

 

(a) a direction in writing suspending the voting rights attached to the shares held by the shareholders or members in question, or

 

 

(b) such other direction as it thinks fit.

 

 

(7) The Bank may also give a similar direction to persons who fail to comply with the notification requirements referred to in sub-article (1). If a holding is acquired contrary to this Article, the Bank may give to the persons concerned a direction in writing suspending the corresponding voting rights or the nullity of votes cast.

 

 

(8) A direction given by the Bank under this Article is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

5.

Article 46

Substitute the following sub-article for sub-article (7):

 

 

“(7) A decision of the Bank refusing or failing to provide relevant information is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

6.

Article 62

Repeal the Article.

 

PART 7

Amendment of Supervision of Credit Institutions, Stock Exchange Member Firms and Investment Business Firms Regulations 1996 (S.I. No. 267 of 1996)

Item

Provision affected

Amendment

1.

Regulation 10

Substitute the following Regulation:

 

 

“10. A decision of a supervisory authority under these regulations is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

 

PART 8

Amendment of European Communities (Electronic Money) Regulations 2002 (S.I. No. 221 of 2002)

Item

Provision affected

Amendment

1.

Regulation 15

Substitute the following paragraph for paragraphs (7) to (11):

 

 

“(7) A decision of the Bank refusing to transmit the relevant information to the competent authority of the Member State concerned is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

2.

Regulation 28

Substitute the following paragraphs for paragraphs (5) to (11):

 

 

“(5) The Bank may at any time, by notice given in writing to the electronic money institution concerned, vary or revoke a direction given under Regulation 27(3).

 

 

(6) The Bank may, by giving a further direction in writing, extend the period of operation of a direction given under Regulation 27(3), for such further period, not exceeding 12 months from the date the direction started to have effect, as the Bank considers appropriate.

 

 

(7) A direction given under Regulation 27(3) ceases to have effect—

 

 

(a) at the end of the period specified in the direction or, if the period of its operation has been extended, at the end of that extended period, or

 

 

(b) on the making of a winding-up order in respect of the institution concerned,

 

 

whichever first occurs.

 

 

(8) If a direction under Regulation 27(3) is in force—

 

 

(a) winding-up or bankruptcy proceedings may be commenced in relation to the electronic money institution concerned, and

 

 

(b) a receiver over the property of that institution may be appointed, and

 

 

(c) the property of that institution may be attached, sequestered or otherwise distrained,

 

 

only with the prior approval of the Court.

 

 

(9) If it appears to the Bank that an electronic money institution in respect of which the direction was given under Regulation 27(3) is able to meet its obligations to its creditors but the circumstances that gave rise to the direction are unlikely to be rectified, it may give the institution a further direction requiring the institution—

 

 

(a) to prepare, in consultation with the Bank, a scheme for the orderly termination of its business relating to issuing e-money, and the discharge of its liabilities in relation to its issued e-money, under the supervision of the Bank, and

 

 

(b) to submit the scheme to the Bank for its approval within 2 months after preparing the scheme.

 

 

(10) If it appears to the Bank that an electronic money institution to which a direction has been given under paragraph (9)—

 

 

(a) has failed, or is failing, to comply with the direction, or

 

 

(b) has failed, or is failing, to comply with the terms of the scheme as approved by the Bank,

 

 

the Court may, on the application of the Bank, make such order as it considers appropriate, including—

 

 

(i) an order of committal, or

 

 

(ii) if the institution is a body corporate, a winding-up order on the grounds that it is just and equitable that the institution should be wound up, or

 

 

(iii) if the institution is a partnership, an order dissolving the partnership on the grounds that it is just and equitable that the institution should be dissolved.

 

 

(11) A direction given by the Bank under Regulation 27(3) or under this Regulation is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

3.

Regulation 40

Substitute the following paragraph for paragraphs (5) to (8):

 

 

“(5) A direction issued under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .”.

4.

Regulation 41

Substitute the following Regulation:

 

 

“Direction by Bank to cease business.

41. (1) This Regulation applies to an electronic money institution authorised in another Member State.

 

 

(2) If—

 

 

(a) the Bank considers that it is necessary, in the interests of the proper and orderly regulation of financial markets in the State, or

 

 

(b) the electronic institution concerned has had its authorisation withdrawn, revoked or suspended, in whole or in part, in accordance with the law of the relevant Member State,

 

 

 

the Bank may dispense with the requirements of Regulation 40 in relation to the notification of that institution.

 

 

 

(3) If the Bank dispenses with the requirements of Regulation 40 in relation to the notification of an electronic money institution, the competent authority of the other Member State and the Bank may direct that institution to take such measures as the Bank may specify, including a direction—

 

 

 

(a) that the institution cease to provide e-money services in the State, and

 

 

 

(b) where the institution has a branch in the State, that the business of the branch be wound up or dissolved by the Court in an orderly manner.

 

 

 

(4) A direction given by the Bank under paragraph (3) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .

 

 

 

(5) As soon as practicable after taking measures under paragraph (3), the Bank shall inform the European Commission and the competent authority of the relevant Member State of those measures.

 

 

 

(6) The Bank shall comply with any direction given by the European Commission in accordance with paragraph 7 of Article 22 of the Codified Directive to amend, suspend or terminate measures that the Bank has directed an electronic money institution to take under paragraph (3).”.

 

PART 9

Amendment of European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003 (S.I. No. 211 of 2003)

Item

Provision affected

Amendment

1.

Regulation 14

Substitute the following Regulation:

 

 

“Refusal of authorisation and right of appeal.

14. (1) As soon as practicable after deciding to refuse an application for authorisation the Bank shall, by notice in writing, inform the company of its decision. A decision refusing the application must include a statement of the grounds on which it is based.

 

 

 

(2) If the application complies with Regulation 13, the Bank shall in any case comply with paragraph (1) within 6 months after the date on which the Bank received the application.”.

2.

Regulation 104

Substitute the following Regulation:

 

 

“Directions by the Bank.

104. (1) If the Bank is of the opinion that—

 

 

(a) it is in the public interest to do so, or

 

 

 

(b) it is in the interests of the orderly and proper regulation of UCITS, or

 

 

 

(c) any of the requirements for authorising a UCITS are no longer satisfied, or

 

 

 

(d) the management company, investment company or trustee of such a UCITS—

 

 

 

(i) has become or is likely to become unable to meet its obligations to its creditors, or

 

 

 

(ii) has contravened any provision of these Regulations, or has failed to comply with any condition or requirement imposed under these Regulations by the Bank, or in purported compliance with any such provision, has provided the Bank with information that it knows to be false, inaccurate or misleading, or

 

 

 

(iii) is not maintaining adequate capital resources having regard to the volume and nature of its business, or

 

 

 

(iv) no longer complies with the capital or other financial requirements imposed by the Bank from time to time,

 

 

 

the Bank may give a direction in writing to the management company, investment company or trustee requiring it to take such steps (including the winding-up of the UCITS or the suspension of the issue or redemption of units of the UCITS, or both) from a date specified in that direction until such further date as is specified in that direction, or in another direction, as the Bank considers necessary in the interests of the orderly and proper regulation of UCITS or for the protection of unit-holders or creditors of the UCITS.

 

 

 

(2) If a direction under paragraph (1) affects a particular UCITS, the UCITS shall immediately notify its unit-holders of the terms of the direction.

 

 

 

(3) The revocation of the authorisation of a UCITS does not affect the operation of a direction given under paragraph (1) that is then in force. A direction may be given under that paragraph in relation to a UCITS whose authorisation has been revoked so long as a direction under that paragraph was already in force at the time of revocation.

 

 

 

(4) For the purposes of paragraph (1), the Bank may take into account any matter relating to the UCITS, management company, investment company, trustee or any person employed by or associated with the management company, investment company or trustee in connection with the UCITS.

 

 

 

(5) The Bank may revoke a direction under paragraph (1) unless an order under paragraph (10) has been made in respect of that direction.

 

 

 

(6) A direction of the Bank given under paragraph (1) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 at the instance of—

 

 

 

(a) a management company, investment company or trustee to which the direction relates, or

 

 

 

(b) any creditor who is affected by the direction.

 

 

 

(7) A direction given under paragraph (1) ceases to have effect—

 

 

 

(a) when the period specified in the direction expires, or

 

 

 

(b) if, on the hearing of an appeal against the direction by the Irish Financial Services Appeals Tribunal, the Tribunal confirms the direction but varies the period, when that period expires, or

 

 

 

(c) on the making of a winding-up order in respect of the UCITS, or with the sanction of the court, the dissolution of the UCITS,

 

 

 

whichever occurs first.

 

 

 

(8) If the Bank is of the opinion that, even if the management company, investment company or trustee concerned appears to be able to meet its obligations to its creditors, the circumstances giving rise to the direction are likely to continue to exist after the giving of direction, it may give a further direction in writing to the UCITS requiring it—

 

 

 

(a) to prepare, in consultation with the Bank, a scheme for the orderly termination of its business and the discharge of its liabilities, and

 

 

 

(b) to submit the scheme to the Bank for its approval within 3 months after its preparation.

 

 

 

(9) If a management company, investment company or trustee of a UCITS—

 

 

 

(a) has failed, or is failing, to comply with a direction given by the Bank under paragraph (8), or

 

 

 

(b) has failed, or is failing, to comply with a scheme approved by the Bank under that paragraph,

 

 

 

the court may, on the application of the Bank, make such order as it considers appropriate (including an order of committal or a winding-up order on the grounds that it is just and equitable that the management company, investment company or trustee be wound up).

 

 

 

(10) The court may, on application under paragraph (9) hear evidence from creditors, and the court may make such interim or interlocutory order, as it considers appropriate.

 

 

 

(11) While a direction under paragraph (1) is in force—

 

 

 

(a) the UCITS to which it relates may not be dissolved, and

 

 

 

(b) the court may, by order, restrain any disposal of the assets of the UCITS on the ground that such a disposal could have the effect of perpetrating a fraud on the UCITS, its creditors or unit-holders.”.

3.

Regulation 105

Substitute the following Regulation:

 

 

“Certain decisions of Bank to be appealable.

105. The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942 :

 

 

(a) a decision refusing an application for authorisation under Regulation 14(1);

 

 

 

(b) a failure to decide an application within the period prescribed by Regulation 14(2);

 

 

 

(c) a decision revoking or refusing an application to revoke an authorisation;

 

 

 

(d) a decision replacing or proposing to replace a management company or trustee under Regulation 101.”.