Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698136093874.pdf (Ireland)
———————— AN BILLE UM CHISTI´ INFHEISTI´OCHTA, CUIDEACHTAI´ AGUS FORA´ LACHA ILGHNE´ ITHEACHA 2006 INVESTMENT FUNDS, COMPANIES AND MISCELLANEOUS PROVISIONS BILL 2006 ———————— Mar a tionscnaı´odh As initiated ———————— ARRANGEMENT OF SECTIONS PART 1 Preliminary and General Section 1.

Short title, collective citation and construction.

2.

Commencement.

3.

Definitions.

4.

Orders and regulations.

5.

Expenses.

PART 2 Amendments of Companies Acts 6.

Audit exemption thresholds.

7.

Dematerialisation.

8.


Amendment of section 43 of Act of 2005.

PART 3 Transparency Requirements Regarding Issuers of Securities Admitted to Trading on Certain Markets 9.

Interpretation (Part 3).

10.

Power to make certain regulations.

11.

Conviction on indictment of offences under Transparency (regulated markets) law.

12.

Supplementary rules, etc., by competent authority.

13.

Amendment of section 33AK of Central Bank Act 1942.

[No.

39 of 2006] 14.


Application of Transparency (regulated markets) law to cer- tain markets.

PART 4 Miscellaneous 15.

Amendment of section 8 of the Irish Takeover Panel Act 1997.

16.

Amendment of Schedule to Irish Takeover Panel Act 1997.

17.

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

18.

Amendment of Consumer Information Act 1978.


———————— 2 Acts Referred to Central Bank Act 1942 Central Bank and Financial Services Authority of Ireland Act 2003 Companies (Amendment)(No.

2) Act 1999 Companies (Auditing and Accounting) Act 2003 Companies Act 1990 Company Law Enforcement Act 2001 Consumer Information Act 1978 European Communities Act 1972 Investment Funds, Companies and Miscellaneous Pro- visions Act 2005 Irish Takeover Panel Act 1997 1942, No.

22 2003, No.

12 1999, No.

30 2003, No.


44 1990, No.

33 2001, No.

28 1978, No.

1 1972, No.

27 2005, No.

12 1997, No.
5 3 4 ———————— AN BILLE UM CHISTI´ INFHEISTI´OCHTA, CUIDEACHTAI´ AGUS FORA´ LACHA ILGHNE´ ITHEACHA 2006 INVESTMENT FUNDS, COMPANIES AND MISCELLANEOUS PROVISIONS BILL 2006 ———————— BILL entitled AN ACT TO AMEND AND EXTEND THE COMPANIES ACTS, THE IRISH TAKEOVER PANEL ACT 1997, THE CEN- TRAL BANK ACT 1942 AND THE CONSUMER INFOR- MATION ACT 1978, TO PROVIDE FOR THE IMPLEMEN- TATION OF DIRECTIVE 2004/109/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 15 DECEMBER 2004 AND TO PROVIDE FOR RELATED MATTERS.
5 10 15 BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: PART 1 Preliminary and General 1.—(1) This Act may be cited as the Investment Funds, Compan- ies and Miscellaneous Provisions Act 2006.

Short title, collective citation and construction.

20 (2) The Companies Acts and Parts 2 and 3 shall be read together as one.
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.

25 Commencement.

3.—In this Act— Definitions.

“Act of 1990” means the Companies Act 1990; “Act of 2005” means the Investment Funds, Companies and Mis- cellaneous Provisions Act 2005; 30 “Minister” means Employment.
the Minister for Enterprise, Trade and 5 Orders and regulations.
4.—Every order or regulation made under this Act (other than an order made under section 2 or 14) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resol- ution annulling the order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
5 Expenses.

5.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister 10 for Finance, be paid out of moneys provided by the Oireachtas.

PART 2 Amendments of Companies Acts Audit exemption thresholds.

6.—(1) Section 32 of the Companies (Amendment) (No.
2) Act 1999 is amended in subsection (3)— (a) by substituting, in paragraph (a)(ii), “\7.3 million” for “\1,500,000” (inserted by the Companies (Auditing and Accounting) Act 2003), and (b) by substituting, in paragraph (a)(iii), “\3.65 million” for “£1,500,000”.

15 20 (2) The amendments effected by subsection (1) shall apply as respects a financial year of a company that commences not earlier than 2 months after the commencement of this section.
(3) Nothing in this section prejudices the future exercise of the power under subsection (7) of section 32 of (Amendment) (No.

2) Act 1999 in relation to subsection (3) (as it stands amended by this section) of that section 32. the Companies 25 Dematerialisation.
7.—Section 239 of the Act of 1990 is amended— (a) by inserting the following subsection after subsection (1): “(1A) Subject to any exceptions that may be specified 30 in the regulations, the regulations may, in respect of— (a) securities of companies admitted to trading on a regulated market, (b) securities of companies admitted to trading on a market other than a regulated market, or 35 (c) securities of public limited companies of a speci- fied class, provide that the means provided by the regulations for evidencing and transferring title to such securities shall constitute the sole and exclusive means for doing so (and, 40 accordingly, that any purported transfer of such securities otherwise than by those means shall be void).”, 6 5 10 15 20 (b) in subsection (5), by adding the following paragraph: “(c) The regulations may— (i) require the provision of statements by a company to holders of securities (at speci- fied intervals or on specified occasions) of the securities held in their name; (ii) make provision removing any requirement for the holders of securities to surrender existing share certificates to issuers; and (iii) make provision that the requirements of the regulations supersede any existing requirements in the articles of association of a company which would be incompat- ible with the the regulations.”, requirements of and (c) by inserting the following subsection after subsection (5): “(5A) Without prejudice to the generality of subsec- tions (4) and (5), the regulations shall not contain pro- visions that would result in a person who, but for the regu- lations, would be entitled— (a) to have his or her name entered in the register of members of a company, or (b) to give instructions in respect of any securities, 25 ceasing to be so entitled.”.
8.—The following section is substituted for section 43 of the Act of 2005: “Restriction of liability where non-equity securities solely involved.
30 35 40 43.—Where a prospectus is issued solely in respect of non-equity securities— (a) only— (i) the offeror or the person who has sought the admission of the securi- ties to which the prospectus relates to trading on a regulated market, and (ii) subject to, and to the extent pro- vided in, paragraph (c), the guarantor (if any), and no other person referred to in section 41 shall be liable under that section in the circumstances in which that section applies unless— (I) the prospectus expressly provides otherwise, or 7 Amendment of section 43 of Act of 2005.
(II) that other such person is convicted an offence on indictment of created by Irish prospectus law or an offence under section 48 in respect of that prospectus, the issue of 5 (b) section 383(3) of the Act of 1963 shall not apply to the directors or secretary of the issuer to the extent that such application would thereby impose a 10 liability under section 41 on such direc- tors or secretary, and (c) no liability shall attach under section 41 to a guarantor of such securities save in respect of statements included in, or 15 information omitted from, the prospec- tus that relate to the guarantor or the guarantee given by the guarantor.”.
PART 3 Transparency Requirements Regarding Issuers of Securities Admitted to Trading on Certain Markets 20 Interpretation (Part 3).
9.—(1) In this Part— “Transparency (Regulated Markets) Directive” means Directive 2004/109/EC1 of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements 25 in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC, including the first-mentioned Directive as it stands amended for the time being; “Transparency (regulated markets) law” means— 30 the Transparency (a) the measures adopted for the time being by the State to implement (Regulated Markets) Directive and any supplemental Directive (whether an Act of the Oireachtas, regulations under section 3 of the European Communities Act 1972, regulations under 35 section 10 or any other enactment (other than, save where the context otherwise admits, this Part)), (b) any measures directly applicable in the State in con- the Transparency (Regulated Markets) sequence of Directive and, without prejudice to the generality of this 40 paragraph, includes any Regulation or Decision made by the Commission pursuant to the procedure referred to in Article 27(2) of that Directive, and (c) any supplementary and consequential measures adopted for the time being by the State in respect of any Regu- 45 lation or Decision made by the Commission in con- the Transparency (Regulated Markets) sequence of Directive pursuant to the foregoing procedure; 1OJ L390, 31.12.2004, p.38 8 “supplemental Directive” means any Directive made by the Com- mission in consequence of the Transparency (Regulated Markets) Directive pursuant to the procedure referred to in Article 27(2) of that Directive.
5 (2) A word or expression that is used in this Part and is also used in the Transparency (Regulated Markets) Directive shall have in this Part the same meaning as it has in that Directive.

10.—(1) The Minister may make regulations for the purposes of— Power to make certain regulations.
(a) giving effect to the Transparency (Regulated Markets) 10 Directive or any supplemental Directive, and (b) supplementing and making consequential provision in respect of any Regulation or Decision made by the Com- mission in consequence of that Directive pursuant to the procedure referred to in Article 27(2) of that Directive.
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Mini- ster to be necessary or expedient for the purposes of those regu- lations, including— (a) provisions creating offences (but the regulations may only provide penalties in respect of a summary conviction for any such offence), and (b) provisions creating civil liability in respect of contra- ventions of the regulations so as to enable any person suffering loss thereby to recover compensation for that loss.
15 20 25 (3) Regulations under this section may also make, for the pur- poses of those regulations, provision analogous to that which is made by Part IV of the Act of 1990.

(4) This section is without prejudice to section 3 of the European 30 Communities Act 1972.
35 40 45 11.—A person who is guilty of an offence created by Transparency (regulated markets) law (being an offence expressed by that law to be an offence to which this section applies) shall, without prejudice to any penalties provided by that law in respect of a summary convic- tion for the offence, be liable, on conviction on indictment, to a fine not exceeding \1,000,000 or imprisonment for a term not exceeding 5 years or both.
Conviction on indictment of offences under Transparency (regulated markets) law.

12.—(1) In this section “competent authority” means the com- (regulated authority designated under Transparency petent markets) law.

Supplementary rules, etc., by competent authority.
(2) The competent authority may make rules imposing or enabling the competent authority to impose requirements on persons on whom an obligation or obligations are imposed by Transparency (regulated markets) law, being requirements— (a) to do or not to do specified things so as to secure that the provisions of Transparency (regulated markets) law are complied with and, in particular (without limiting the 9 generality of this paragraph), to adopt specified pro- cedures and use specified forms in the provision of infor- mation to the competent authority, 5 (b) to do or not to do specified things so as to secure the effective supervision by the competent authority of activi- ties of the kind to which Transparency (regulated markets) law relates and, in particular (without limiting the generality of this paragraph), to make such reports or disclose such matters, at such times and in such manner, to the competent authority or other specified persons as 10 are provided for by the rules or specified by the com- petent authority pursuant to the rules, being reports or a disclosure of matters that is or are required by virtue or in consequence of the operation of Transparency (regulated markets) law.
15 (3) Rules under this section may, include rules necessary for the performance by the competent authority of the the Transparency (Regulated functions under Article 24 of Markets) Directive.

in particular, (4) Rules under this section may contain such consequential, inci- 20 dental or supplemental provisions as the competent authority con- siders necessary or expedient.
(5) Rules under this section shall not contain any provision that is inconsistent with Transparency (regulated markets) law or require the provision of information to any person the provision of which 25 is not reasonably related to the purposes for which the applicable provisions of the Transparency (Regulated Markets) Directive have been adopted.
(6) The provisions of Transparency (regulated markets) law that are expressed by that law to be made for the purpose of enabling 30 the imposition of administrative sanctions shall apply in relation to a contravention of rules under this section as they apply in relation to a contravention of a provision of Transparency (regulated markets) law and, accordingly, a sanction that may be imposed pur- suant to the first-mentioned provisions of Transparency (regulated 35 markets) law in respect of a contravention of a provision of that law may, in accordance with that law, be imposed in respect of a contravention of rules under this section.
(7) The competent authority may issue guidelines in writing as to the steps that may be taken to comply with Transparency (regulated 40 markets) law.

Amendment of section 33AK of Central Bank Act 1942.
13.—The definition of “Supervisory Directives” in subsection (10) of section 33AK (inserted by the Central Bank and Financial Services Authority of Ireland Act 2003) of the Central Bank Act 1942 is amended by substituting the following paragraphs for para- 45 graph (h) (inserted by the Act of 2005): “(h) the 2003 Prospectus Directive (within the meaning of Part 5 of the Investment Funds, Companies and Mis- cellaneous Provisions Act 2005), (i) the Transparency (Regulated Markets) Directive 50 (within the meaning of Part 3 of the Investment Funds, Companies and Miscellaneous Provisions Act 2006);”.
10 14.—(1) The Minister, after consultation with the competent authority designated under Transparency (regulated markets) law, may, by provisional order, provide that one or more provisions of Transparency (regulated markets) law that apply in relation to a market to which the Transparency (Regulated Markets) Directive applies shall, with such modifications, if any, as are specified in the order, apply to a market specified in the order.
Application of Transparency (regulated markets) law to certain markets.

(2) A provisional order under this section shall not have effect unless or until it is confirmed by an Act of the Oireachtas.

PART 4 Miscellaneous 5 10 15.—Section 8 of the Irish Takeover Panel Act 1997 is amended— (a) in subsection (1), by substituting “subsections (2), (3), (4) and (7A) to (7D)” for “subsections (2), (3) and (4)”, and Amendment of section 8 of the Irish Takeover Panel Act 1997.
15 (b) by inserting after subsection (7) the following subsections: 20 25 30 35 40 “(7A) The power to make rules under this section includes the power to make provision in such rules to give effect to— (a) a provision of the treaties of the European Communities, or (b) an act adopted by an institution of those Com- munities.

(7B) Nothing in the European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006 (S.I.

No.
255 of 2006) (referred to subsequently in this section as the ‘Regulations’)— (a) prejudices the future exercise of the power of the Panel to make rules under this section for the purpose of giving effect to Directive 2004/25/EC2 of the European Parliament and of the Council of 21 April 2004 on takeover bids (or any other act adopted by an institution of the European Communities), (b) prevents the Panel from making like provision in rules under this section to that which was made by Regulation 11 of, and the Schedule to, the Regulations.
(7C) The Panel may, by rules under this section, revoke— (a) Regulation 11 of, and the Schedule to, the Regulations, and (b) the words ‘(being those rules as they stand amended by Regulation 11)’ where they occur 2OJ L142, 30.04.2004, p.12 11 in Regulations 16(3), 18(4) and 18(6) of the Regulations.
(7D) Different rules may be made under this section in relation to any thing referred to in this section respecting a company by reference to whether the company is or is not a company a bid in respect of which the Panel has, by virtue of Regulation 6 of the Regulations, jurisdiction to supervise.”.

Amendment of Schedule to Irish Takeover Panel Act 1997.
16.—The following Schedule is substituted for the Schedule to the Irish Takeover Panel Act 1997: 5 10 “SCHEDULE Principles Applicable To The Conduct Of Takeovers, Etc.

1.

All holders of the securities of an offeree of the same class must be afforded equivalent treatment; moreover, if a per- son acquires control of a company, the other holders of 15 securities must be protected.

2.
2.

The holders of the securities of an offeree must have sufficient time and information to enable them to reach a properly informed decision on the offer; where it advises the holders of securities, the board of the offeree must give 20 its views on the effects of implementation of the offer on employment, conditions of employment and the locations of the offeree’s places of business.

3.
3.

The board of an offeree must act in the interests of the company as a whole and must not deny the holders of 25 securities the opportunity to decide on the merits of the offer.

4.

False markets must not be created in the securities of the offeree, of the offeror or of any other company concerned by the offer in such a way that the rise or fall of the prices 30 of the securities becomes artificial and the normal func- tioning of the markets is distorted.

5.
5.

An offeror must announce an offer only after ensuring that he or she can fulfil in full any cash consideration, if such is offered, and after taking all reasonable measures to secure 35 the implementation of any other type of consideration.

6.

An offeree must not be hindered in the conduct of its affairs for longer than is reasonable by an offer for its securities.

7.
7.

A substantial acquisition of securities (whether such 40 acquisition is to be effected by one transaction or a series of transactions) shall take place only at an acceptable to adequate and timely speed and shall be subject disclosure.”.

12 17.—The following Regulation is substituted for Regulation 7 of the European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006 (S.I.

No.
No.

255 of 2006): 5 “7.—The Panel shall ensure compliance with the principles set out in the Schedule to the Act of 1997 when performing its func- tions in accordance with these Regulations.”.

18.—Section 9(11)(b) of the Consumer Information Act 1978 (as amended by the Company Law Enforcement Act 2001) is repealed.

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

Amendment of Consumer Information Act 1978.

13