CENTRAL BANK REFORM ACT 2010 REVISED Updated to 1 July 2018
Source: Iris Oifigiúl 57 2010-07-20 01016-01016

num: 1
paragraphs: — (1) This Act may be cited as the Central Bank Reform Act 2010.
(2) The Central Bank and Financial Services Authority of Ireland Acts 1942 to 2009 and this Act may be cited together as the Central Bank Acts 1942 to 2010.
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paragraphs: — (1) This Act comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to a particular purpose or provision. Different days may be so appointed for different purposes or different provisions.
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paragraphs: — (1) In this Act—
“Act of 1942” means the Central Bank Act 1942 ;
“cessation date” means the last day on which section 33B of the Act of 1942 is in operation.
(2) An expression used in this Act and also in the Act of 1942 has, unless the contrary intention appears, the same meaning in this Act as in the Act of 1942.
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paragraphs: — (1) The person who held, on the cessation date, the office of Chief Executive of the Regulatory Authority (within the meaning then given by the Act of 1942) shall be taken, on the following day, to be appointed as Head of Financial Regulation.
(2) Subject to subsection (5), the person referred to in subsection (1) holds the office of Head of Financial Regulation until the time at which his or her appointment as Chief Executive of the Regulatory Authority would have expired.
(3) The person who held, on the cessation date, the office of Director General of the Bank shall be taken, on the following day, to be appointed as Head of Central Banking.
(4) Subject to subsection (5), the person referred to in subsection (3) holds the office of Head of Central Banking until the time at which his or her appointment as Director General of the Bank would have expired.
(5) A person referred to in subsection (1) or (3) may be removed from office for the same reasons, and in the same way, as a person appointed to hold office as a Head of Function under section 23B of the Act of 1942.
(6) This section has effect notwithstanding sections 23B(2) and 23C(2) of the Act of 1942.
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paragraphs: — Other than the holder of a statutory office that ceases to exist because of amendments to the Act of 1942 by this Act, nothing in this Act affects the terms and conditions of the employment of any officer or employee of the Bank.
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paragraphs: — (1) In this section—
“secondee” means an employee seconded from the Bank to the Agency under arrangements referred to in subsection (2).
(2) The Bank and the Agency may make arrangements for the secondment of employees of the Bank to the Agency for the purposes of any function transferred from the Bank to the Agency pursuant to amendments to the Act of 1942 by this Act.
(3) A secondee may elect to become an employee of the Agency at any time until 29 February 2012.
(4) A secondee who does not make an election under subsection (3) continues to be an employee of the Bank until 29 February 2012. His or her terms of employment (including any term conferring a right to an increase in remuneration) continue to be those applicable to his or her employment by the Bank.
(5) On 1 March 2012, a secondee who has not made an election under subsection (3) shall be taken to have elected to continue to be an employee of the Bank.
(6) An election under subsection (3) to become an employee of the Agency has effect if and only if the chief executive officer of the Agency, the Minister for Finance and the Minister for Enterprise, Trade and Innovation all consent. If all of them so consent, the election has effect immediately after the latest of those consents is given. Until that time the employee concerned continues to be an employee of the Bank.
(7) If a secondee elects to become an employee of the Agency, the terms of employment by the Agency at the time the election has effect shall not be less favourable than the terms at that time of his or her employment by the Bank (subject to any provision in any enactment).
(8) If a person’s employment is transferred under this section, the person’s previous service with the Bank is to be counted as service for the purposes of the following Acts:
(a) the Redundancy Payments Acts 1967 to 2007;
(b) the Protection of Employees (Part-Time Work) Act 2001 ;
(c) the Protection of Employees (Fixed-Term Work) Act 2003 ;
(d) the Organisation of Working Time Act 1997 ;
(e) the Terms of Employment (Information) Acts 1994 and 2001;
(f) the Minimum Notice and Terms of Employment Acts 1973 to 2005;
(g) the Unfair Dismissals Acts 1977 to 2007;
(h) the Maternity Protection Acts 1994 and 2004;
(i) the Parental Leave Acts 1998 and 2006;
(j) the Adoptive Leave Acts 1995 and 2005;
(k) the Carer’s Leave Act 2001 .
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paragraphs: — (1) Any instrument (whether described as a rule, regulation, order or code of practice or in any other way, and whether or not a statutory instrument to which the Statutory Instruments Act 1947 primarily applies) made or issued by or on behalf of the Regulatory Authority or the Consumer Director and in force on the cessation date has, after that date, the same force and effect as it had on that date.
(2) An instrument referred to in subsection (1) may be revoked or amended by the Bank as if made by the Bank.
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paragraphs: — (1) The repeal of section 33 of the Act of 1942 by this Act does not affect the operation of any scheme made by the Bank or the Governor under that section and still in operation, or any rights of any person under such a scheme.
(2) A scheme referred to in subsection (1) may be amended by the Bank as if section 33 of the Act of 1942 had not been repealed.
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paragraphs: — (1) An application for a licence, authorisation or permission (however described) made to the Regulatory Authority on or before the cessation date has, after that date, the effect that it would have if made to the Bank.
(2) Nothing in subsection (1) is taken to alter the date on which an application referred to in that subsection was made.
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paragraphs: — (1) On the day after the cessation date, the records of the Regulatory Authority and information that was, on the cessation date, in the possession of the Regulatory Authority come into the possession of the Bank.
(2) The Bank has the same rights, powers, duties and obligations in relation to records and information referred to in subsection (1) as the Regulatory Authority had on the cessation date.
(3) In particular, without prejudice to the generality of subsection (2), the Bank—
(a) may have regard, in carrying out its regulatory functions under the Act of 1942 as amended by this Act, to any record or information referred to in subsection (1),
(b) specifically, may have regard to any such record or information for the purpose of deciding whether a person may have committed an offence (whether against the Central Bank Acts 1942 to 2010 or any other law), and
(c) has the same powers and obligations to deal with such records and information (including that of disclosing such information to another authority in accordance with section 33AK of the Act of 1942) as the Regulatory Authority had on the cessation date.
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paragraphs: — (1) A regulatory action taken by the Regulatory Authority on or before the cessation date, and not already spent, continues to have effect according to its terms. The Bank may enforce such a regulatory action.
(2) In subsection (1) “regulatory action” includes any direction, order, requirement, sanction, condition, appointment or request (however described) of a regulatory nature made, given or imposed by the Regulatory Authority.
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paragraphs: — (1) An inquiry undertaken by the Regulatory Authority under Chapters 2 and 3 of Part IIIC of the Act of 1942 on or before the cessation date, and not already completed, may be continued by the Bank. The Bank may take regulatory action on the basis of such an inquiry.
(2) An assessor appointed by the Regulatory Authority on or before the cessation date under—
(a) Part 5 of the Market Abuse (Directive 2003/6/EC) Regulations 2005,
(b) Part 5 of the Prospectus (Directive 2003/71/EC) Regulations 2005, or
(c) Part 10 of the Transparency (Directive 2004/109/EC) Regulations 2007,
may continue, if the assessment for which he or she was appointed is not completed at that date, to carry out that assessment. The Bank may take regulatory action on the basis of such an assessment.
(3) In subsections (1) and (2) “regulatory action” includes any direction, order, requirement, sanction, condition, appointment or request (however described) of a regulatory nature that the Bank may make, give or impose.
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paragraphs: — (1) If on the cessation date the Regulatory Authority is a party to any legal proceedings, then the Bank is taken, immediately after that date, to be substituted for the Regulatory Authority as such a party.
(2) Nothing in subsection (1) makes available against the Bank any right (including, in particular, any right to seek discovery of documents) that was not or is no longer available against the Regulatory Authority.
(3) An order by a court or the Appeal Tribunal against the Regulatory Authority has effect, after the cessation date, as an order against the Bank.
(4) In this section “legal proceedings” includes—
(a) an appeal to the Appeal Tribunal, and
(b) a prosecution where the Regulatory Authority is prosecutor.
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paragraphs: — (1) The Act of 1942 is amended as set out in Part 1 of Schedule 1 .
(2) Parts IIIC, VIIA and VIIB of the Act of 1942 are further amended as follows:
(a) by deleting “Regulatory Authority” and substituting “Bank” in each place where it occurs;
(b) by deleting “that Authority” and substituting “the Bank” in each place where it occurs.
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paragraphs: — (1) The Anglo Irish Bank Corporation Act 2009 is amended as set out in Part 1 of Schedule 2 .
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paragraphs: — (1) The Ethics in Public Office (Prescribed Public Bodies, Designated Directorships of Public Bodies and Designated Positions in Public Bodies) Regulations 2004 ( S.I. No. 699 of 2004 ) are amended as set out in Part 1 of Schedule 3 .
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paragraphs: — (1) After the cessation date, a reference in an enactment or a provision of a statutory instrument to the Board of the Central Bank and Financial Services Authority of Ireland shall be construed as a reference to the Commission.
(2) After the cessation date, a reference in an enactment or a provision of a statutory instrument to a member of the Board of the Central Bank and Financial Services Authority of Ireland shall be construed as a reference to a member of the Commission.
(3) After the cessation date, a reference in an enactment or a provision of a statutory instrument to the Chief Executive of the Irish Financial Services Regulatory Authority shall be construed as a reference to the Head of Financial Regulation.
(4) After the cessation date, any other reference in an enactment or a provision of a statutory instrument to the Central Bank and Financial Services Authority of Ireland shall be construed as a reference to the Bank.
(5) After the cessation date, any other reference in an enactment or a provision of a statutory instrument to the Irish Financial Services Regulatory Authority (as “the Regulatory Authority ” or in any other way) shall be construed as a reference to the Bank.
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paragraphs: — (1) In this Part—
“ Court ” means the High Court;
“ evidentiary notice ” means a notice under section 32 ;
“ controlled function ” means a function prescribed in regulations made under section 20 ;
“ pre-approval controlled function ” shall be construed in accordance with section 22 ;
“ suspension notice ” means a notice under section 26 .
(2) This Part applies to and in relation to regulated financial service providers other than credit unions.
(3) On and from a date to be fixed by the Minister by order, this Part applies to and in relation to all regulated financial service providers, including credit unions.
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paragraphs: — In this Chapter “relevant obligations” has the same meaning as in Part IV of the Central Bank Act 1997 .
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paragraphs: — (1) The Bank may make regulations prescribing functions that are to be controlled functions.
(2) The Bank may prescribe a function under subsection (1) if and only if the function is a function in relation to the provision of a financial service and—
(a) is likely to enable the person responsible for its performance to exercise a significant influence on the conduct of the affairs of a regulated financial service provider,
(b) is related to ensuring, controlling or monitoring compliance by a regulated financial service provider with its relevant obligations, or
(c) is likely to involve the person responsible for its performance in the provision of a financial service by a regulated financial service provider in one or more of the following ways:
(i) the giving of advice or assistance to a customer of the regulated financial service provider in the course of providing, or in relation to the provision of, the financial service;
(ii) dealing in or having control over property of a customer of the regulated financial service provider to whom a financial service is provided or to be provided, whether that property is held in the name of the customer or some other person;
(iii) dealing in or with property on behalf of the regulated financial service provider, or providing instructions or directions in relation to such dealing.
(3) A controlled function that is carried on by a person who, or a partnership or an entity that, is not a regulated financial service provider remains a controlled function.
(4) A controlled function remains a controlled function even if—
(a) it is carried on at an office or location outside the State,
(b) it is carried on at the office or location of another person, whether or not the other person is a regulated financial service provider, or
(c) it relates to a business of a regulated financial service provider established in the State conducted by that provider outside the State.
(5) A function may be prescribed as a controlled function in relation to a specified class or classes of regulated financial service providers or in relation to regulated financial service providers generally.
(6) The Bank shall give to the Minister a copy of any regulations made by it under this section as soon as practicable after the regulations are made and the Minister shall, as soon as may be, cause a copy of the regulations to be laid before each House of the Oireachtas.
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paragraphs: — (1) A regulated financial service provider shall not permit a person to perform a controlled function unless—
(a) the regulated financial service provider is satisfied on reasonable grounds that the person complies with any standard of fitness and probity in a code issued under section 50 , and
(b) the person has agreed to abide by any such standard.
(2) The Bank may take into account standards of fitness and probity referred to in subsection (1) when performing its functions and exercising its powers.
num: 22
paragraphs: — (1) A function is a pre-approval controlled function if—
(a) it is prescribed as such in regulations made pursuant to subsection (2), or
(b) it has been declared by the Bank to be a pre-approval controlled function by written notice pursuant to subsection (8).
(2) The Bank may prescribe by regulation a controlled function as a pre-approval controlled function if the function is one by which a person may exercise a significant influence on the conduct of a regulated financial service provider’s affairs. In prescribing such a function, the Bank may describe or identify the function by reference to a title commonly used for a person who performs the function.
(3) Without prejudice to the generality of subsection (2), the Bank may, pursuant to that subsection, prescribe a controlled function as a pre-approval controlled function if—
(a) the person who performs the function reports directly to—
(i) a person who holds an office or position mentioned in a subparagraph of subsection (4)(a), or
(ii) a person referred to in paragraph (b) or (c) of subsection (4),
and
(b) the Bank is satisfied that the prescription of the function as a pre-approval controlled function—
(i) is warranted on the grounds of the size or complexity of the regulated financial service provider or its business, and
(ii) is necessary or prudent in order to verify the compliance by the regulated financial service provider with its relevant obligations.
(4) For the purposes of subsection (2)—
(a) in the case of a regulated financial service provider that is a body corporate of a prescribed class, a person who holds or performs the duties of any of the following positions or offices in a regulated financial service provider shall be taken to exercise a significant influence on the conduct of the regulated financial service provider’s affairs:
(i) the office of director;
(ii) the office of chief executive;
(iii) the office of secretary;
(iv) subject to subsection (3), an office or position the holder of which reports directly to—
(I) a person who holds an office or position referred to in subparagraph (i), (ii) or (iii), or
(II) a person referred to in paragraph (b) or (c),
(b) each member of a partnership that is a regulated financial service provider of a prescribed class shall be taken to exercise a significant influence on the conduct of the regulated financial service provider’s affairs, and
(c) if a natural person is a regulated financial service provider of a prescribed class, he or she shall be taken to exercise a significant influence on the conduct of the regulated financial service provider’s affairs.
(5) For the purposes of subsection (4)(a), the Bank may prescribe bodies corporate of a specified class or may prescribe all bodies corporate to be a class. In prescribing bodies corporate of a particular class, the Bank may define the class by reference to any common characteristic of the class, including in particular the kind of business engaged in or the size of the balance sheets of the bodies corporate.
(6) For the purposes of paragraph (b) or (c) of subsection (4), the Bank may prescribe regulated financial service providers that are partnerships or natural persons, as the case may be, of a specified class or may prescribe all regulated financial service providers that are partnerships or natural persons to be a class. In prescribing regulated financial service providers that are partnerships or natural persons of a particular class, the Bank may define the class by reference to any common characteristic of the class, including in particular the kind of business engaged in or the annual turnover of the partnerships or natural persons concerned.
(7) Regulations made under this section may be made in the same instrument as regulations made under section 20 .
(8) The Bank may declare by notice in writing served on a regulated financial service provider that a function performed by, for or on behalf of the regulated financial service provider is a pre-approval controlled function if—
(a) the person who performs the function is concerned in the management of the regulated financial service provider,
(b) the function is not prescribed as a pre-approval controlled function in regulations made pursuant to subsection (2), and
(c) no other person in the regulated financial service provider performs a pre-approval controlled function.
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paragraphs: — A regulated financial service provider shall not offer to appoint a person to perform a pre-approval controlled function unless the Bank has approved in writing the appointment of the person to perform the function. An offer made in contravention of this subsection does not create any contractual obligation.
(2) For the purposes of considering whether or not to approve a person under subsection (1), the Bank may request the person, or a specified officer or employee of the regulated financial service provider that proposes to appoint the person to perform a controlled function, by notice in writing to do any one or more of the following:
(a) produce a specified document or documents to the Bank;
(b) provide specified information to the Bank;
(c) produce to the Bank documents of a kind described in the notice;
(d) answer a question or questions set out in the notice;
(e) attend before a specified officer or employee of the Bank for interview.
(3) A notice under subsection (2) shall specify a date and time by which, and a place at which, the person shall provide the document or documents or information, provide answers to the question or questions, or attend for interview, as the case may be.
(4) Nothing in subsection (2) or any notice given by the Bank under that subsection requires a person—
(a) to produce to the Bank a document that the person could not have been compelled to produce to a court,
(b) to give the Bank information that the person could not have been compelled to give a court, or
(c) to answer a question (either in writing or at interview) that the person could not have been compelled to answer in a court.
(5) The Bank may refuse to approve the appointment of a person for the purposes of subsection (1) where—
(a) the Bank is of the opinion that the person is not of such fitness and probity as is appropriate to perform the function for which he or she is proposed to be appointed, or
(b) the Bank is unable to decide, on the basis of the information available to it, whether the person is of such fitness and probity.
(6) Without prejudice to the generality of subsection (5), the Bank may refuse to approve the appointment of a person under subsection (1) if—
(a) the person, or an officer or employee of the regulated financial service provider concerned, has failed to comply with a request under subsection (2), or
(b) any of the grounds set out in paragraphs (a) to (g) of section 25 (3) apply.
(7) A refusal pursuant to subsection (5) is an appealable decision for the purposes of Part VIIA of the Act of 1942.
num: 24
paragraphs: — In this Chapter “ suspended person ” means a person who is the subject of a suspension notice.
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paragraphs: — (1) If in relation to a person to whom subsection (2) applies, the Head of Financial Regulation is of the opinion that—
(a) there is reason to suspect the person’s fitness and probity to perform the relevant controlled function, and
(b) in the circumstances an investigation is warranted into the person’s fitness and probity,
the Head of Financial Regulation may conduct an investigation, in accordance with this Chapter, in relation to the fitness and probity of the person to perform the controlled function.
(2) This subsection applies to a person—
(a) if the person performs a controlled function in relation to a regulated financial service provider,
(b) if, to the knowledge of the Head of Financial Regulation, a regulated financial service provider proposes to appoint the person to carry out a controlled function (other than a pre-approval controlled function), or
(c) if the Head of Financial Regulation has reason to believe that a regulated financial service provider is considering the appointment of the person to perform a controlled function (other than a pre-approval controlled function).
(3) Without prejudice to the generality of subsection (1), the Head of Financial Regulation may form the opinion referred to in that subsection if there is reason to suspect that—
(a) the person does not have the experience, qualifications or skills necessary to perform properly and effectively the controlled function, the part of a controlled function or any controlled function, as the case may be,
(b) the person does not satisfy an applicable standard of fitness and probity in a code issued pursuant to section 50 ,
(c) the person has participated in serious misconduct in relation to the business of a regulated financial service provider,
(d) the person has directly or indirectly provided information to the Bank, the Governor or the Head of Financial Regulation (whether pursuant to this Part or otherwise) that the person knew or ought to have known was false or misleading,
(e) the person has directly or indirectly provided information that the person knew or ought to have known was false or misleading to another person in order for it to be provided to the Bank, the Governor or the Head of Financial Regulation,
(f) the person has caused or sought to cause information requested by the Head of Financial Regulation by evidentiary notice from a regulated financial service provider or a person who is carrying out a controlled function not to be provided by the due date,
(g) the person has failed to comply with an evidentiary notice, or
(h) the person has been convicted of an offence (whether in the State or outside the State) of money laundering or terrorist financing or an offence involving fraud, dishonesty or breach of trust.
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paragraphs: — (1) If a person’s fitness and probity is or has been the subject of an investigation under section 25 , and the Head of Financial Regulation is satisfied that it is necessary in the interests of the proper regulation of a regulated financial service provider concerned that the person not perform the relevant controlled function, or any controlled function, while the Head of Financial Regulation, the Bank or the Governor, as the case may be, is carrying out any function in relation to the person under this Chapter or Chapter 4 , the Head of Financial Regulation may issue a notice (in this Part called a “suspension notice”) in relation to the person.
(2) When considering whether to issue a suspension notice, the Head of Financial Regulation shall have particular regard, where appropriate, to—
(a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and
(b) the need to protect users of financial services.
(3) Before issuing a suspension notice in the circumstances referred to in section 25 (2)(c), the Head of Financial Regulation shall ask the regulated financial service provider concerned in writing whether it is actually considering the appointment of the person concerned to perform the relevant controlled function. If the regulated financial service provider confirms in writing that it is not considering such an appointment, the Head of Financial Regulation shall not issue the notice unless there is reason to believe that such an appointment will nevertheless be made, or has been made.
(4) A suspension notice—
(a) is required to be in writing,
(b) shall set out the grounds on which the Head of Financial Regulation holds the opinion referred to in section 25 (1),
(c) shall specify whether the suspended person is suspended from performing—
(i) a particular specified controlled function,
(ii) a specified part of a particular specified controlled function, or
(iii) all controlled functions,
(d) shall require the suspended person and the regulated financial service provider concerned to show cause, in writing, within 5 days after service of the notice, why the suspension order should not be confirmed, and
(e) shall set out any condition imposed under subsection (8) on the regulated financial service provider.
(5) The Head of Financial Regulation shall serve a copy of a suspension notice on each of the following:
(a) the suspended person;
(b) each regulated financial service provider for whom, to the knowledge of the Head of Financial Regulation, the suspended person performs the specified controlled function, the specified part of a controlled function, or any controlled function, as the case requires;
(c) any regulated financial service provider that—
(i) to the knowledge of the Head of Financial Regulation, proposes to appoint the suspended person to perform the specified controlled function, the specified part of a controlled function, or any controlled function, as the case requires, or
(ii) the Head of Financial Regulation believes to be considering appointing the suspended person to perform the specified controlled function, the specified part of a controlled function, or any controlled function, as the case requires.
(6) A suspension notice may be served on a person (including a regulated financial service provider)—
(a) by delivering it to the person,
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address,
(c) by sending it by post in a prepaid letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address, or
(d) electronically (by electronic mail to an email address, or by facsimile to a facsimile number, furnished by the person to, or otherwise known to, the Head of Financial Regulation).
(7) A regulated financial service provider on which a suspension notice is served shall immediately—
(a) give a copy of the notice to the suspended person (unless it is impracticable to do so), and
(b) after it has done so, certify in writing to the Head of Financial Regulation that it has done so.
(8) In a suspension notice the Head of Financial Regulation may impose on any regulated financial service provider concerned any terms and conditions relating to the enforcement of, or compliance with, the notice that the Head of Financial Regulation thinks fit (including any condition as to the cessation, restriction or conduct of all or part of the business of the regulated financial service provider concerned until the regulated financial service provider complies with the notice).
(9) A suspended person, and a regulated financial service provider on which a suspension notice is served, may, within the period mentioned in subsection (4)(d), make a written submission to the Head of Financial Regulation in relation to the fitness and probity of the suspended person concerned or any terms or conditions imposed.
(10) Where a person on whom a suspension notice has been served asks the Head of Financial Regulation to decide, before the end of the period provided by section 28 (b) (i), whether or not to confirm the suspension notice, and provides material that the Head of Financial Regulation is satisfied allows him or her to make a proper and fair decision, the Head of Financial Regulation shall make all reasonable efforts to make that decision as soon as reasonably practicable.
num: 27
paragraphs: — (1) A regulated financial service provider on whom a suspension notice is served—
(a) shall immediately remove the suspended person concerned from performing—
(i) the particular controlled function concerned,
(ii) the specified part of the controlled function concerned, or
(iii) all controlled functions,
as specified in the notice, or
(b) shall not appoint the suspended person to carry out the controlled function or part, or any controlled function, as specified in the notice,
as the case requires.
(2) A regulated financial service provider on whom a suspension notice is served shall comply with any condition imposed on the regulated financial service provider by the notice.
(3) A suspended person on whom a suspension notice in relation to him or her is served, or who has been given a copy of such a notice by a regulated financial service provider shall cease performing, or (as the case requires) shall not begin to perform—
(a) the particular controlled function concerned,
(b) the specified part of the controlled function concerned, or
(c) all controlled functions,
as specified in the relevant suspension notice.
(4) A suspension notice does not alter the contractual rights of any person to remuneration or benefits. Those rights shall continue to be determined in accordance with the relevant contract.
num: 28
paragraphs: — A suspension notice that has not been confirmed by the Head of Financial Regulation pursuant to section 29 —
(a) takes effect on its service on the regulated financial service provider for whom the suspended person performs the relevant controlled function, and
(b) ceases to have effect—
(i) at the end of the 10th day after that service, unless within that period it is confirmed in accordance with section 29 , or
(ii) if before the end of that day the Head of Financial Regulation revokes the notice, when the notice is revoked.
num: 29
paragraphs: — (1) If the Head of Financial Regulation, having considered any written submissions made pursuant to section 26 within the period mentioned in section 26 (4) (d) by a person on whom, or a regulated financial service provider on which, a suspension notice has been served, is satisfied that—
(a) there is still reason to believe that the person is not of such fitness and probity as is appropriate to perform the relevant controlled function,
(b) in the circumstances an investigation is still warranted into the person’s fitness and probity, and
(c) it is necessary in the interests of the proper regulation of the financial service provider that the person not perform the controlled function, or any controlled function, while the matter is investigated,
the Head of Financial Regulation may confirm the suspension notice.
(2) To avoid any doubt, the Head of Financial Regulation may confirm a suspension notice at the end of the period mentioned in section 26 (4)(d) even if no submission has been made in relation to it by either or both of the suspended person and any regulated financial service provider concerned.
(3) If a suspended person makes a submission in relation to a suspension notice after the end of the period mentioned in section 26 (4)(d), and the Head of Financial Regulation is satisfied that there was good reason why the submission could not have been made within that period, or that it is necessary to do so in the interests of justice, the Head of Financial Regulation shall—
(a) consider the submission, and
(b) if after doing so he or she is satisfied that any condition in paragraph (a), (b) or (c) of subsection (1) is no longer satisfied, revoke the notice.
(4) A suspension notice that has been confirmed in accordance with subsection (1) has effect for 3 months (unless sooner revoked) from the date upon which the suspension notice would otherwise have ceased to have effect under section 28 (b).
(5) The Head of Financial Regulation shall serve a notice of the confirmation of a suspension notice on each person on whom the suspension notice was served.
(6) The Head of Financial Regulation may revoke a suspension notice at any time if he or she considers that—
(a) there is no longer any reason to suspect the person’s fitness and probity to perform the relevant controlled function, or
(b) although the investigation continues, it is no longer necessary in the interests of the proper regulation of the regulated financial service provider concerned that the person not perform the relevant controlled function, or any controlled function, during the investigation.
num: 30
paragraphs: — If—
(a) a person performs a controlled function or part of a controlled function in contravention of a suspension notice, or
(b) a regulated financial service provider permits a suspended person to perform a controlled function or part of a controlled function in contravention of a suspension notice,
the Head of Financial Regulation may apply ex parte to the Court for an order directing the person or regulated financial service provider to comply with the notice.
num: 31
paragraphs: — (1) During the period of validity of a suspension notice that has been confirmed by the Head of Financial Regulation, the Head of Financial Regulation may apply to the Court, on notice to the suspended person and any regulated financial service provider on which the notice was served, for an order extending the period of validity of the notice.
(2) If the Court is satisfied, having regard to the reasons for the issue and confirmation of the notice stated by the Head of Financial Regulation, that there are sufficient grounds to extend the period of validity of the notice, the Court may extend the notice for such further period (but not longer than a further 3 months) as the Court orders.
(3) When considering whether to make an order under subsection (2), the Court shall give particular regard to—
(a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and
(b) the need to protect users of financial services.
num: 32
paragraphs: — (1) The Head of Financial Regulation may serve a notice (in this Part called an “ evidentiary notice ”) on a person requiring the person—
(a) to appear before the Head of Financial Regulation to give evidence about a matter,
(b) to provide information to the Head of Financial Regulation, or
(c) to produce a document for examination,
if—
(i) the Head of Financial Regulation is investigating the person’s fitness and probity under this Chapter, or
(ii) the Head of Financial Regulation believes on reasonable grounds that the person may be able to give evidence, or to produce a document, that relates to a matter concerning the fitness or probity of a person whose fitness and probity is being investigated under this Chapter.
(2) Without prejudice to the generality of subsection (1), the Head of Financial Regulation may serve a notice under subsection (1) on—
(a) a regulated financial service provider,
(b) a former regulated financial service provider, or
(c) an officer or employee, or former officer or employee, of a regulated financial service provider or a former regulated financial service provider.
(3) An evidentiary notice shall—
(a) specify the matter to which the evidence relates, or specify or describe the document to be produced or the information to be provided, as the case requires,
(b) in the case of a notice to appear before the Head of Financial Regulation to give evidence—
(i) specify the date, time and place at which the person is required to appear before the Head of Financial Regulation, and
(ii) state whether and to what extent the evidence is to be given orally or on affidavit,
and
(c) in the case of a notice to provide information or produce a document for examination, specify—
(i) the date and time by which, and the place at which, the information is to be provided or the document is to be produced, and
(ii) the officer or employee of the Bank to whom the information is to be provided or the document produced.
(4) The Head of Financial Regulation may take a copy or copies of a document produced pursuant to an evidentiary notice, and may retain any such copy.
(5) Nothing in this section affects any power of the Bank, the Governor or the Head of Financial Regulation to obtain documents or information otherwise than under this section.
num: 33
paragraphs: — (1) A person commits an offence if, having been required to appear before the Head of Financial Regulation in compliance with an evidentiary notice, the person fails to comply with the requirement, and has not been excused, or released from further attendance, by the Head of Financial Regulation.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
num: 34
paragraphs: — (1) The Head of Financial Regulation may hear oral evidence where he or she is satisfied that it is necessary to do so for the proper conduct of an investigation.
(2) The Head of Financial Regulation may permit a person giving oral evidence to be cross-examined.
(3) The Head of Financial Regulation shall determine the procedures for the conduct of proceedings in an investigation, subject to any regulations made by the Bank under section 53 (2).
num: 35
paragraphs: — (1) Except as provided by this section, evidence to be given, or a document to be produced, to the Head of Financial Regulation by a person who appears before the Head of Financial Regulation in compliance with an evidentiary notice shall be given or produced in private.
(2) If a person who appears before the Head of Financial Regulation in compliance with an evidentiary notice requests that the matter or any part of it be dealt with in public, the Head of Financial Regulation shall comply with the request unless—
(a) the matter raises issues that, in the opinion of the Head of Financial Regulation, should be dealt with in private, or
(b) the Head of Financial Regulation considers that it is necessary or desirable to deal with the matter or part of it in private in order to avoid the disclosure of information of the kind referred to in section 33AK(1A) of the Act of 1942.
(3) Subject to subsections (1) and (2), if the Head of Financial Regulation is satisfied that it is desirable in the public interest that the evidence to be given should be given, or the document to be produced should be produced, in public, the Head of Financial Regulation may direct accordingly.
(4) If the evidence is to be given, or the document is to be produced, in private, the Head of Financial Regulation may do either or both of the following:
(a) give directions as to the persons (other than the Head of Financial Regulation or an officer or employee of the Bank) who may be present during the proceeding;
(b) give directions preventing or restricting the publication of the whole or any part of the evidence or of matters contained in the document.
(5) If the evidence is to be given, or the document is to be produced, in private, a person (other than the person required to appear before the Head of Financial Regulation, the Head of Financial Regulation or an officer or employee of the Bank) may be present only if entitled to be present because of a direction given under subsection (4)(a).
(6) A person who contravenes a direction of the Head of Financial Regulation under subsection (4)(b) commits an offence.
num: 36
paragraphs: — (1) A person commits an offence if, having been required to produce a document or provide information to the Head of Financial Regulation in compliance with an evidentiary notice, he or she fails to comply with the requirement and has not been excused by the Head of Financial Regulation.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
(3) It is a reasonable excuse for the purposes of subsection (2) that—
(a) the person does not have the document or information and cannot by any reasonable effort obtain it; or
(b) the person could not be compelled to produce the document in, or provide the information to, a court of law.
(4) Subsection (3) does not limit what is a reasonable excuse for the purposes of subsection (2).
num: 37
paragraphs: — (1) A person appearing before the Head of Financial Regulation in compliance with an evidentiary notice commits an offence if the person—
(a) refuses or fails to give evidence in compliance with the evidentiary notice, or
(b) refuses or fails to answer a question put to the person by the Head of Financial Regulation or in cross-examination with the permission of the Head of Financial Regulation.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
(3) It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to answer a question that the answer might tend to incriminate the person.
(4) Subsection (3) does not limit what is a reasonable excuse for the purposes of subsection (2).
(5) If a person alleges that he or she has a reasonable excuse for refusing or failing to give evidence, or refusing or failing to answer a question, he or she shall provide a written statement setting out details of the excuse to the Head of Financial Regulation.
(6) The Bank may have regard to the contents of a statement under subsection (5) for the purposes of the exercise of its powers and the performance of its functions under the Central Bank Acts 1942 to 2010.
(7) A statement under subsection (5) is not admissible in evidence, against the person who made it, in proceedings in relation to an offence.
num: 38
paragraphs: — Evidence given to the Head of Financial Regulation in accordance with this Chapter, and any report prepared pursuant to section 41 on the basis of such evidence, is absolutely privileged.
num: 39
paragraphs: — (1) A person (other than a person to whom subsection (2) applies) who appears before the Head of Financial Regulation in compliance with an evidentiary notice is entitled to be paid such allowances and travelling or other expenses as the Head of Financial Regulation may reasonably allow.
(2) This subsection applies to—
(a) a person whose fitness and probity is being investigated under this Part,
(b) a regulated financial service provider or a former regulated financial service provider, and
(c) a person called or put forward by a person referred to in paragraph (a) or (b) to give evidence.
(3) All allowances and expenses payable under subsection (1) are payable by the Bank.
num: 40
paragraphs: — (1) If a person refuses or fails—
(a) to produce a document to the Head of Financial Regulation in accordance with an evidentiary notice,
(b) to provide information to the Head of Financial Regulation,
(c) to attend before the Head of Financial Regulation in accordance with an evidentiary notice, or
(d) to answer a question put to him or her by the Head of Financial Regulation,
the Head of Financial Regulation may certify the refusal or failure to the Court.
(2) The Court may, after hearing any witnesses who may be produced against or on behalf of the person alleged to have so refused or failed and any statement which may be offered in defence, make any order or give any direction it thinks fit.
(3) Without prejudice to the generality of subsection (2), the Court may—
(a) order the person concerned to attend or re-attend before the Head of Financial Regulation, or to produce a particular document, provide particular information or answer a particular question put to him or her by the Head of Financial Regulation, or
(b) order that the person concerned need not produce a particular document, provide particular information or answer a particular question put to him or her by the Head of Financial Regulation.
num: 41
paragraphs: — (1) After carrying out an investigation under this Chapter, the Head of Financial Regulation shall prepare a report for consideration by the Bank and the Governor.
(2) The Head of Financial Regulation shall serve a copy of a report prepared in accordance with subsection (1) on each of—
(a) the person whose fitness and probity was the subject of the relevant investigation, and
(b) any regulated financial service provider concerned.
(3) A copy of a report may be served in any of the ways that a suspension notice may be served.
(4) A person (including a regulated financial service provider) on whom a copy of a report is served pursuant to subsection (2) may make, within the period specified in accordance with subsection (5), a submission in writing to the Head of Financial Regulation in relation to any matter in the report.
(5) When the Head of Financial Regulation serves a copy of a report on a person (including a regulated financial service provider) pursuant to subsection (2), the Head of Financial Regulation shall inform the person in writing of the person’s right under subsection (4) to make a submission in relation to any matter in the report, and shall specify the period within which the person may do so. The period specified shall be 7 days, or such longer period as the Head of Financial Regulation considers reasonable in all the circumstances.
num: 42
paragraphs: — In this Chapter—
“prohibited person” means a person forbidden, by a prohibition notice, to carry out a controlled function;
“prohibition notice” means a notice under section 43 .
num: 43
paragraphs: — (1) Subject to subsection (4), if the Bank or the Governor has reasonably formed the opinion that a person is not of such fitness and probity as is appropriate to perform a particular controlled function, a specified part of a controlled function or any controlled function, the Bank or the Governor, as the case may be, may issue a notice in writing (in this Part called a “prohibition notice”) forbidding the person—
(a) to carry out the controlled function, the specified part of a controlled function or any controlled function, as the case requires, or
(b) to carry out the controlled function, the specified part of such a function or any controlled function, as the case requires, otherwise than in accordance with a specified condition or conditions,
either for a specified period or indefinitely.
(2) Without prejudice to the generality of subsection (1), the Bank or the Governor may form the opinion referred to in that subsection if satisfied that—
(a) the person does not have the experience, qualifications or skills necessary to perform properly and effectively the controlled function, the specified part of a controlled function or any controlled function, as the case may be,
(b) the person does not satisfy an applicable standard of fitness and probity in a code issued pursuant to section 50 ,
(c) the person has participated in serious misconduct in relation to the business of a regulated financial service provider,
(d) the person has directly or indirectly provided information to the Bank, the Governor or the Head of Financial Regulation (whether pursuant to this Part or otherwise) that the person knew or ought to have known was false or misleading,
(e) the person has directly or indirectly provided information that the person knew or ought to have known was false or misleading to another person in order for it to be provided to the Bank, the Governor or the Head of Financial Regulation,
(f) the person has caused or sought to cause information requested by the Head of Financial Regulation by evidentiary notice from a regulated financial service provider or a person who is carrying out a controlled function not to be provided by the due date,
(g) the person has failed to comply with an evidentiary notice or a suspension notice, or
(h) the person has been convicted of an offence (whether in the State or outside the State) of money laundering or terrorist financing or an offence involving fraud, dishonesty or breach of trust.
(3) The Bank or the Governor shall not issue a prohibition notice in relation to a person unless—
(a) either—
(i) all of the following requirements have been satisfied:
(I) the Head of Financial Regulation has conducted an investigation into the person’s fitness and probity in accordance with this Chapter;
(II) section 41 has been complied with in relation to that investigation and the report of it;
(III) the Bank or the Governor, as the case may be, has considered the report and any submissions made (within the period specified pursuant to section 41 (4)) to the Head of Financial Regulation in relation to any matter in the report,
or
(ii) there are undisputed facts that in the reasonable opinion of the Bank or the Governor render an investigation unnecessary, and the person and any regulated financial service provider concerned have been afforded a reasonable opportunity to make a submission in relation to the matter,
(b) the person and the regulated financial service provider have been afforded such a hearing in relation to the proposed issue of the prohibition notice as is necessary to do justice in the circumstances, and
(c) the Bank or the Governor, as the case may be, is satisfied that the issue of a prohibition notice is necessary in the circumstances.
(4) When considering whether to issue a prohibition notice, the Bank or the Governor, as the case may be, shall have particular regard to—
(a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and
(b) the need to protect users of financial services.
(5) A prohibition notice may be expressed to apply—
(a) to one or more specified controlled functions or parts of controlled functions or all controlled functions, and
(b) in relation to the performance of any such controlled function or part of a controlled function for one or more regulated financial service providers, a class of regulated financial service providers or every regulated financial service provider.
(6) A prohibition notice may be served in any of the ways that a suspension notice may be served.
(7) A prohibition notice—
(a) takes effect on first service on either the prohibited person or the regulated financial service provider concerned, and
(b) if an application is made to the Court under section 45 before the notice ceases to have effect, continues to have effect until that application is determined by the Court or withdrawn.
Subject to section 46 , a prohibition notice ceases to have effect at the end of 2 months (or a shorter period specified in the notice) beginning on the day after it is first served as mentioned in paragraph (a) if no application is made to the Court within that period.
(8) A prohibited person shall not perform a controlled function if doing so would require the person to contravene a prohibition notice served on the person.
(9) A regulated financial service provider shall not permit a prohibited person to perform a controlled function if doing so would require the person to contravene a prohibition notice served on the regulated financial service provider.
(10) The Bank may publish a prohibition notice if, in the opinion of the Governor, it is necessary to do so in order to achieve the purposes of this Part.
(11) A prohibition notice does not alter the contractual rights of any person to remuneration or benefits. Those rights shall continue to be determined in accordance with the relevant contract.
(12) The Bank or the Governor, as the case may be—
(a) shall not continue a prohibition notice for longer than is necessary to achieve those purposes, and
(b) shall not make an application to the Court under section 45 in relation to a prohibition notice unless the Bank or the Governor is satisfied that it is necessary that the notice continue for longer than 2 months to achieve the purposes referred to in subsection (4).
num: 44
paragraphs: — (1) Subject to subsection (2), if—
(a) a person performs a controlled function in contravention of a prohibition notice, or
(b) a regulated financial service provider permits a prohibited person to perform a controlled function in contravention of a prohibition notice,
the Head of Financial Regulation may apply ex parte to the Court for an order directing the person or regulated financial service provider to comply with the notice.
(2) This section does not apply in relation to a prohibition notice that has been confirmed by the Court under section 45 .
num: 45
paragraphs: — (1) The Bank may apply to the Court in accordance with this section for an order confirming a prohibition notice. Where such an application is made with the consent of the prohibited person concerned, the Court may make an order under this section ex parte.
(2) Without limiting the exercise of the judicial function with respect to a particular case, it shall be the duty of the High Court, in so far as it is practicable, to hear and determine an application under this section within 3 months after the date on which the application is made to it.
(3) If when hearing an application under subsection (1) the Court is satisfied that, for reasons of confidentiality or commercial sensitivity or in order to avoid the disclosure of information of the kind referred to in section 33AK(1A) of the Act of 1942, the hearing of the Court should be held otherwise than in public, the Court may so order.
(4) The Court may, on the hearing of an application under subsection (1), consider evidence not adduced or hear an argument not made to the Bank or the Governor, if the Court is satisfied that—
(a) there are cogent reasons justifying the failure to adduce the evidence or make the argument to the Governor or the Bank, and
(b) it is just and equitable for the Court to consider the evidence or hear the argument, as the case may be.
(5) On an application under this section—
(a) if the Court is satisfied that there is a reasonable basis (as set out in subsection (6)) for the opinion of the Bank or the Governor, as the case may be, that the prohibited person concerned is not of such fitness and probity as is appropriate to perform the relevant controlled function or part of a controlled function, or any controlled function (as the case may be), the Court may make—
(i) an order confirming the relevant prohibition notice,
(ii) if the Court considers that it is necessary in the interests of justice, or for any other good reason, to vary the prohibition notice, an order varying or limiting it (including by imposing a condition or conditions on the prohibited person or a regulated financial institution concerned), and
(iii) any other additional or ancillary order it thinks fit,
and
(b) if the Court is not satisfied as provided for in paragraph (a), the Court may make—
(i) an order setting aside the notice,
(ii) an order remitting the matter to the Bank or the Governor for reconsideration in accordance with any directions by the Court (whether or not the Court also sets aside the notice), or
(iii) any other order it thinks fit.
(6) For the purposes of subsection (5)(a), there is a reasonable basis for an opinion if, taking into account the expertise and specialist knowledge possessed by the Bank or the Governor, as the case requires, the opinion (and the process that led to its formation) was not vitiated by—
(a) any significant and serious error or series of such errors,
(b) a mistake of law, or
(c) the evidence, taken as a whole, not supporting the finding.
(7) When considering whether to make an order under subsection (5), the Court shall have particular regard to—
(a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and
(b) the need to protect users of financial services.
(8) An order under subsection (5) may be expressed to have effect—
(a) indefinitely, or for a particular period that the Court thinks appropriate, or
(b) until further order of the Court.
(9) A prohibition notice that has been confirmed by the Court (whether or not also varied by the Court) has effect as an order of the Court and may be enforced accordingly.
(10) Section 43 applies to any prohibition notice made by the Bank after reconsideration in accordance with an order referred to in subsection (5)(b)(ii).
(11) The setting aside by the Court of a prohibition notice does not of itself prevent the further exercise of the powers of the Bank, the Governor or the Head of Financial Regulation under this Part.
num: 46
paragraphs: — (1) Where the Bank or the Governor has issued a prohibition notice in relation to a person, the person (and, where at the time of issue of the prohibition notice, the person is performing a controlled function, the regulated financial service provider concerned) may agree in writing with the Bank or the Governor that the person and, where applicable, the regulated financial service provider shall continue to comply with the prohibition notice for such period as is agreed.
(2) Where a person and the Bank or the Governor have agreed as set out in subsection (1), then—
(a) nothing in section 45 requires the Bank or the Governor to apply for an order under that section,
(b) subject to subsection (3), and notwithstanding sub section 43 (6), the prohibition notice shall continue in effect in accordance with its terms, and
(c) in the event of a contravention of the agreement—
(i) the Bank may apply to the Court for an order under section 44 , and
(ii) the prohibition notice shall continue in effect in accordance with its terms.
(3) If the Bank or the Governor, as the case may be, considers that there is no further need to continue a prohibition notice that is the subject of an agreement under subsection (1), the Bank or the Governor, as the case may be, may terminate the agreement by written notice to that effect to the prohibited person and any regulated financial service provider concerned. On the giving of such a notice the prohibition notice ceases to have effect.
num: 47
paragraphs: — The Bank may make use of—
(a) information and evidence gathered by the Head of Financial Regulation in the course of an investigation under Chapter 3 ,
(b) anything in any submission made to the Head of Financial Regulation pursuant to section 41 , and
(c) anything in any document or evidence placed before the Court in the course of proceedings under Chapter 3 or 4,
for the purposes of any statutory function of the Bank (including, in particular, an inquiry pursuant to Part IIIC of the Act of 1942 and the imposition of sanctions as a result of such an inquiry).
num: 48
paragraphs: — (1) A person shall not provide to the Head of Financial Regulation or the Bank, for the purposes of this Part, information that the person knows or ought to know is false or misleading.
(2) A person who is carrying out, or proposes to carry out, a controlled function shall not provide information or a document that the person knows or ought to know is false or misleading to a regulated financial service provider with a view to the information or document being provided to the Head of Financial Regulation or the Bank for the purposes of this Part.
(3) A person shall not give the Head of Financial Regulation or the Bank, for the purposes of this Part, a document (whether in response to an evidentiary notice or otherwise) that the person knows or ought to know is false or misleading or is not what it purports to be.
(4) A person (in this subsection called the “examinee”) who is appearing before the Head of Financial Regulation shall not, in an answer to a question put by the Head of Financial Regulation or another person with the consent of the Head of Financial Regulation, make a statement that the examinee knows or ought to know is false or misleading in a material particular.
(5) A person who contravenes subsection (1), (2), (3) or (4) commits an offence.
num: 49
paragraphs: — A person guilty of an offence under this Part is liable—
(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
num: 50
paragraphs: — The Bank may issue a code setting out standards of fitness and probity for the purposes of this Part.
num: 51
paragraphs: — (1) Nothing in this Part affects any other power of the Bank in relation to the fitness and probity of persons who are officers of, or responsible for the management of, financial service providers.
(2) The Bank may have regard to a document or information gathered or received otherwise than under this Part for any purpose under this Part.
num: 52
paragraphs: — (1) The Governor may at his or her discretion appoint a suitably qualified person (including a person who is not an officer or employee of the Bank) to perform a function of the Governor under this Part if the Governor considers it necessary or appropriate to do so to ensure that the functions of the Governor under this Part are performed efficiently and effectively.
(2) The Head of Financial Regulation may at his or her discretion appoint a suitably qualified person (including a person who is not an officer or employee of the Bank) to perform a function (or any part of a function) of the Head of Financial Regulation under this Part if the Head of Financial Regulation considers it necessary or appropriate to do so to ensure that the functions of the Head of Financial Regulation under this Part are performed efficiently and effectively.
(3) Without prejudice to the generality of subsections (1) and (2), the power to appoint a person to perform a function in accordance with either of those subsections includes the power to appoint the person to do any one or more of the following:
(a) form an opinion required by this Part to be formed by the Governor or the Head of Financial Regulation (as the case may be);
(b) make an application to the Court;
(c) certify a matter to the Court.
num: 53
paragraphs: — (1) The Minister may, in respect of any difficulty that arises in the operation of this Act during the period of 2 years beginning on the date this section comes into operation, make regulations to do anything that appears necessary or expedient for bringing this Act into operation.
(2) The Bank may make regulations setting out procedures to be followed in the exercise of the powers of the Bank, the Governor or the Head of Financial Regulation under this Part.
(3) Regulations made by the Bank under this section may contain such incidental, supplementary and consequential provisions as appear to the Bank to be necessary or expedient for the purposes of the regulations.
(4) Sections 61C and 61D of the Act of 1942 apply to regulations made under this Part.