European Union (General Framework for Securitisation and Specific Framework for Simple, Transparent and Standardised Securitisation) Regulations 2018.
Statutory Instruments
Source: Statutory Instruments

num: 1
paragraphs: (1) These Regulations may be cited as the European Union (General Framework for Securitisation and Specific Framework for Simple, Transparent and Standardised Securitisation) Regulations 2018.
(2) These Regulations come into operation on 1 January 2019.
Interpretation
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paragraphs: (1) In these Regulations -
“Act of 1942” means the Central Bank Act 1942 (No. 22 of 1942);
“asset-backed commercial paper programme” means a programme of securitisations the securities issued by which predominantly take the form of asset-backed commercial paper with an original maturity of one year or less;
“authorised officer” means a person appointed as an authorised officer by the Bank under Regulation 8;
“Bank” means the Central Bank of Ireland;
“Court” means the High Court;
“data equipment” means equipment for processing data;
“enactment” includes an instrument made under an enactment;
“financial services legislation” has the meaning assigned to it by section 3(1) of the Central Bank (Supervision and Enforcement) Act 2013 (No. 26 of 2013);
“institutional investor” means an investor which is one of the following:
(a) an insurance undertaking as defined in point (1) of Article 13 of Directive 2009/138/EC7 ;
(b) a reinsurance undertaking as defined in point (4) of Article 13 of Directive 2009/138/EC;
(c) an institution for occupational retirement provision falling within the scope of Directive (EU) 2016/2341 of the European Parliament and of the Council8 in accordance with Article 2 thereof, unless a Member States has chosen not to apply that Directive in whole or in parts to that institution in accordance with Article 5 of that Directive, or an investment manager or an authorised entity appointed by an institution for occupational retirement provision pursuant to Article 32 of Directive (EU) 2016/2341;
(d) an alternative investment fund manager (AIFM) as defined in point (b) of Article 4(1) of Directive 2011/61/EU9 that manages or markets or both manages and markets alternative investment funds in the Union;
(e) an undertaking for the collective investment in transferable securities (UCITS) management company, as defined in point (b) of Article 2(1) of Directive 2009/65/EC10 ;
(f) an internally managed UCITS, which is an investment company authorised in accordance with Directive 2009/65/EC and which has not designated a management company authorised under that Directive for its management;
(g) a credit institution as defined in point (1) of Article 4(1) of Regulation (EU) No 575/201311 for the purposes of that Regulation or an investment firm as defined in point (2) of Article 4(1) of that Regulation;
“investor” means a natural or legal person holding a securitisation position;
“non-regulated financial service provider” means a person who is not a regulated financial service provider but who otherwise is a person subject to requirements under these Regulations or the Securitisation Regulation;
“original lender” means an entity which, itself or through related entities, directly or indirectly, concluded the original agreement which created the obligations or potential obligations of the debtor or potential debtor giving rise to the exposures being securitised;
“originator” means an entity which -
(a) itself or through related entities, directly or indirectly, was involved in the original agreement which created the obligations or potential obligations of the debtor or potential debtor giving rise to the exposures being securitised, or
(b) purchases a third party’s exposures on its own account and then securitises them;
“record” means any book, document or any other written or printed material in any form including any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form;
“regulated financial service provider” has the same meaning as it has in section 2(1) of the Act of 1942;
“relevant record” means a record relating to the subject matter of the Securitisation Regulation and these Regulations;
“securitisation position” means an exposure to a securitisation;
“securitisation” means a transaction or scheme, whereby the credit risk associated with an exposure or a pool of exposures is tranched, having all of the following characteristics:
(a) payments in the transaction or scheme are dependent upon the performance of the exposure or of the pool of exposures;
(b) the subordination of tranches determines the distribution of losses during the ongoing life of the transaction or scheme;
(c) the transaction or scheme does not create exposures which possess all of the characteristics listed in Article 147(8) of Regulation (EU) No 575/201312 ;
“Securitisation Regulation” means Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 201713 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation and amending Directives 2009/65/EC14 , 2009/138/EC15 and 2011/61/EU16 and Regulations (EC) No. 1060/200917 and (EU) No. 648/201218 ;
“securitisation repository” means a legal person that centrally collects and maintains the records of securitisations;
“securitisation special purpose entity” or ‘SSPE’ means a corporation, trust or other entity, other than an originator or sponsor, established for the purpose of carrying out one or more securitisations, the activities of which are limited to those appropriate to accomplishing that objective, the structure of which is intended to isolate the obligations of the SSPE from those of the originator;
“sponsor” means a credit institution, whether located in the Union or not, as defined in point (1) of Article 4(1) of Regulation (EU) No 575/201319 , or an investment firm as defined in point (1) of Article 4(1) of Directive 2014/65/EU20 other than an originator, that-
(a) establishes and manages an asset-backed commercial paper programme or other securitisation that purchases exposures from third-party entities, or
(b) establishes an asset-backed commercial paper programme or other securitisation that purchases exposures from third-party entities and delegates the day-to-day active portfolio management involved in that securitisation to an entity authorised to perform such activity in accordance with Directive 2009/65/EC, Directive 2011/61/EU or Directive 2014/65/EU;
“tranche” means a contractually established segment of the credit risk associated with an exposure or a pool of exposures, where a position in the segment entails a risk of credit loss greater than or less than a position of the same amount in another segment, without taking account of credit protection provided by third parties directly to the holders of positions in the segment or in other segments.
(2) A word or expression that is used in these Regulations and is also used in the Securitisation Regulation has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Securitisation Regulation.
Application
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paragraphs: These Regulations apply to institutional investors and to originators, sponsors, original lenders and SSPEs.
Part 2
Competent authority for the Securitisation Regulation and these Regulations
Competent authority
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paragraphs: (1) Subject to paragraph (2), the Bank is the competent authority in the State -
(a) responsible for the carrying out of the functions of a competent authority referred to in the Securitisation Regulation, and
(b) in respect of its functions and duties under these Regulations to the extent they relate to the functions referred to in the subparagraph (a).
(2) The Pensions Authority is the competent authority in the State —
(a) responsible for carrying out the functions of a competent authority referred to in Article 29.1 of the Securitisation Regulation with respect to the compliance by institutions for occupational retirement provision with the obligations set out in Article 5 of the Securitisation Regulation, and
(b) in respect of its functions and duties under these Regulations to the extent they relate to the functions referred to in subparagraph (a).
Obligation to cooperate
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paragraphs: The competent authorities shall, whenever necessary for the purpose of carrying out their duties under the Securitisation Regulation, cooperate closely with each other and with the European Securities and Markets Authority, the European Banking Authority and the European Insurance and Occupational Pension Authority and with other competent authorities and shall, in particular, exchange information and cooperate in order to identify and remedy contraventions of the Securitisation Regulation.
Notification of securitisation
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paragraphs: (1) A person shall notify the Bank of a securitisation in respect of which the person performs functions as an originator, sponsor or SSPE and such notification shall be made in accordance with the requirements in paragraphs (2) to (4).
(2) A notification referred to in paragraph (1) shall be made in respect of the first issue of securities of the securitisation following the coming into operation of these Regulations.
(3) A person shall make a notification to the Bank pursuant to paragraph (1) not later than 15 working days after the securities of the securitisation have been issued.
(4) A person shall include the following in a notification made pursuant to paragraph (1):
(a) the International Securities Identification Number (ISIN) of the securitisation;
(b) whether the person making the notification is an originator, sponsor or SSPE with respect to the securitisation;
(c) the name and registered address of the person (whether the person making the notification or another person) required to comply with a requirement under the Securitisation Regulation, where the Securitisation Regulation provides discretion in respect to whom among the originator, sponsor and SSPE is to comply with such requirement;
(d) details of whether the person making the notification is a corporate or non-corporate entity and the name, registered address, corporate status and Legal Entity Identifier (if any) of -
(i) the person making the notification, and
(ii) the originator, sponsor and SSPE (save where any of those persons are the person making the notification).
Part 3
Powers of Bank
Powers of Bank
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paragraphs: (1) The Bank shall have all the powers necessary for the performance of its functions and duties under the Securitisation Regulation and these Regulations.
(2) The powers provided for in this Part in respect of the Bank shall not be exercised in a manner or for a purpose inconsistent with their obligations pursuant to the Securitisation Regulation and these Regulations.
(3) Without limitation to the generality of paragraph (1), the Bank shall, in particular, have the powers set out in this Part and in Parts 4 and 5.
Authorised officers
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paragraphs: (1) The Bank may, in writing, appoint persons as authorised officers for the purposes of monitoring compliance with the Securitisation Regulation and these Regulations.
(2) The Bank may, at any time in writing, revoke the appointment of an authorised officer appointed under this Regulation.
(3) Subject to paragraph (2), the appointment of an authorised officer under this Regulation may be for a specified, or an unspecified, period or for a specified purpose.
(4) The Bank shall provide every authorised officer with a certificate of appointment as such.
(5) When exercising a power conferred on an authorised officer under this Part, an authorised officer shall produce his or her certificate of appointment, together with some form of personal identification, if requested to do so by a person affected by the exercise of the power.
(6) The appointment of an authorised officer made under this Regulation ceases -
(a) where the Bank revokes the appointment, at the time of revocation,
(b) where the person appointed dies, at the time of death,
(c) where the person resigns, at the time of resignation,
(d) where the appointment is for a specified period, at the end of that period,
(e) where the appointment is for a specified purpose, on the completion of that purpose, or
(f) where the person appointed is, when appointed, an officer of the Bank, when the person ceases to be such an officer.
Powers of authorised officers
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paragraphs: (1) An authorised officer may do one or more of the following for the purpose of monitoring compliance with the Securitisation Regulation or these Regulations (including carrying out investigations in relation thereto):
(a) subject to Regulation 10(1), at all reasonable times enter any place at which the authorised officer reasonably believes there are relevant records;
(b) subject to Regulation 10(1), enter any place without prior notice, at which the authorised officer reasonably believes that a person to whom the Securitisation Regulation or these Regulations apply, is carrying on, or has carried on, business activities which are relevant to the Securitisation Regulation, in order to ensure that obligations under the Securitisation Regulation and these Regulations are being complied with;
(c) search and inspect a place and any relevant records at that place;
(d) secure for later inspection any place, or any part of any place, for such a period as may reasonably be necessary for the purposes of the exercise of his or her powers under this Part;
(e) require a person at a place or any person employed in connection with a business carried out at such place, to produce to the authorised officer relevant records, and where any of those relevant records are in a non-legible form to -
(i) reproduce them in a legible form, or
(ii) give the authorised officer such information as that officer reasonably requires regarding entries in them;
(f) inspect and take copies of relevant records inspected or produced under this Regulation (including, in the case of information in a non-legible form, a copy of all or part of the information in a permanent legible form);
(g) secure for later inspection any relevant records so provided or found and any data equipment, including any computer, on which the authorised officer reasonably believes relevant records may be held;
(h) remove and retain some or all of the relevant records inspected or produced under this Regulation for such period as may be reasonable to facilitate their further examination;
(i) require a person at a place to give to the authorised officer information (including information by way of a written report) that that officer reasonably requires in relation to activities covered by the Securitisation Regulation and these Regulations and to produce all relevant records that the person has in their possession or to which they have access;
(j) require a person at a place by whom, or on whose behalf, data equipment is or has been used, or a person who has charge of, or is otherwise concerned with the operation of, that equipment or any associated apparatus or material, to give the authorised officer access and all reasonable assistance in relation to its operation;
(k) require a person at a place to explain entries in relevant records to the authorised officer;
(l) require a person to whom this Part applies to answer questions.
(2) Where a person from whom production of a relevant record is required claims a lien over it, its production does not affect the lien.
(3) An obligation to produce a relevant record or report, or to provide information or assistance, under this Regulation applies to -
(a) an examiner, liquidator or receiver of, or any person who is or has been an officer or employee or agent of, a person to whom these Regulations apply, or
(b) any other person who appears to the Bank or the authorised officer concerned to have the relevant record or report in his or her possession or under his or her control or the ability to provide information or assistance, as the case may be.
(4) When exercising a power under this Part, an authorised officer may, where the officer considers it necessary, be accompanied by one or more -
(a) members of the Garda SÃ­ochÃ¡na, or
(b) other authorised officers.
(5) In this Regulation “place” means a place entered by an authorised officer pursuant to paragraph (1)(a) or (b) and includes the following:
(a) a dwelling or a part thereof;
(b) a building or part thereof;
(c) a vehicle, whether mechanically propelled or not;
(d) a vessel, whether sea-going or not.
Search warrant
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paragraphs: (1) An authorised officer shall not, except with the consent of the occupier, enter a private dwelling (other than a part of a private dwelling used as a place of work) unless the officer has obtained a warrant from a judge of the District Court.
(2) Where an authorised officer in the exercise of the authorised officer’s powers under Regulation 9 is prevented from entering any place, whether or not a private dwelling, where he or she believes that there are relevant records, the authorised officer may apply to a judge of the District Court for a warrant under this Regulation authorising the entry by the authorised officer into the place.
(3) Without prejudice to the powers conferred on an authorised officer by or under any provision of these Regulations, an authorised officer may, for the purposes of an investigation into an offence under these Regulations apply to a judge of the District Court for a warrant in relation to any place.
(4) Where, on the hearing of an application under paragraph (2) or (3), a judge of the District Court is satisfied on sworn information of the authorised officer that he or she -
(a) has been prevented from entering any place that is not a private dwelling,
(b) has reasonable grounds for believing that relevant records are kept at a place that comprise, or form part of, a private dwelling, or
(c) has reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence under these Regulations is to be found in any place,
that judge may issue a warrant under the judge’s hand authorising one or more authorised officers accompanied, if the judge considers it appropriate to so provide, by such number of members of the Garda SÃ­ochÃ¡na as may be specified in the warrant, at any time within 4 weeks from the date of issue of the warrant, to enter, if need be by force, the place or private dwelling and exercise any of the powers referred to in Regulation 9.
Power of Bank to issue directions to originator, sponsor, SSPE or original lender
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paragraphs: (1) Without prejudice to the power of the Bank to impose directions, conditions or other requirements under any enactment, where the Bank considers it necessary to do so in order to -
(a) ensure the integrity of financial markets in -
(i) the State, or
(ii) where relevant, another Member State,
(b) enhance investor confidence in those markets, or
(c) prevent any person from contravening or continuing to contravene the Securitisation Regulation or these Regulations,
the Bank may, subject to paragraphs (2) and (3), issue a direction in writing to any person.
(2) A direction under paragraph (1) shall -
(a) subject to subparagraph (b), take effect on and after such date, or the occurrence of such event, as is specified in the direction for the purpose, and
(b) cease to have effect -
(i) on such date, or the occurrence of such event, as is specified in the direction for the purpose, or
(ii) on the expiration of the period of 12 months immediately following the day on which the direction takes effect,
whichever is the earlier.
(3) A direction under paragraph (1) shall be a direction to do one or more of the following:
(a) take such actions relating to any securitisation as may be specified in the direction;
(b) not to dispose of or otherwise dissipate any assets or specified assets of any person or not to do any of those things save where specified conditions are complied with;
(c) not to dispose of or otherwise dissipate any assets or specified assets the beneficial interest in which is vested in another person or persons or not to do any of those things save where specified conditions are complied with;
(d) being a credit institution, not to make any payments from an account held with the institution by a specified person or persons save with the prior consent of the Bank;
(e) not to accept, process or execute any further securitisations on behalf of a specified person;
(f) not to carry on a business (whether on the person’s behalf or another’s behalf) in a specified manner or otherwise than in a specified manner;
(g) not to engage in any practice that contravenes the Securitisation Regulation or these Regulations.
(4) A person may apply to the Court for, and the Court may, if it considers it appropriate to do so, grant an order setting aside or varying a direction under paragraph (1).
(5) The Bank may, as respects a direction under this Regulation which, in its opinion, has not been complied with or is unlikely to be complied with (or, in the case of a direction referred to in paragraph (3)(b) or (c), irrespective of whether it is of that opinion), apply to the Court in a summary manner for such order as may be appropriate by way of enforcement of the direction and the Court may, as it thinks fit, on the hearing of the application, make or refuse to make an order providing for such relief.
(6) An application for an order under paragraph (5) shall be by motion and the Court, when considering the motion, may make such interim or interlocutory order as it considers appropriate.
(7) An application under paragraph (4) may not be made if the direction concerned has been the subject of an order granted under paragraph (5) (but without prejudice to the right of a person, the subject of an order granted under paragraph (5), to apply subsequently to the Court to have the order varied or discharged).
(8) The Court may direct the hearing together of applications made under paragraphs (4) and (5) that relate to the same direction.
(9) The Court may, if it thinks fit, vary or discharge an order made under paragraph (5).
(10) If the Court is satisfied that it is desirable that the whole or part of proceedings relating to an application under paragraph (4) or (5) be heard otherwise than in public because of the nature or the circumstances of the case or having regard to the interests of justice, the Court may make an order that the proceedings shall, in whole or part, be heard otherwise than in public.
(11) Without prejudice to the powers of the Court to enforce an order made under paragraph (5), a person who fails to comply with such an order shall be guilty of an offence and shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.
(12) The Bank may give a direction amending or revoking a direction given by it under paragraph (1) but this power may not be exercised -
(a) if an order under paragraph (5) is for the time being in force in relation to the direction, or
(b) to extend the period specified in the direction for which it is to have effect.
(13) On the expiry of the period specified in a direction for which it is to have effect, the Bank may give another direction under paragraph (1) (if it considers it necessary to do so on the grounds specified in paragraph (1)), in like or different terms, to the person concerned.
(14) The powers of the Bank under this Regulation are in addition to those conferred on it by any other enactment to give directions or impose conditions or requirements.
Power of Bank to issue contravention notice
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paragraphs: (1) Where the Bank considers it necessary for the purposes of its functions and duties under the Securitisation Regulation or these Regulations, it may issue a notice in writing (in this Regulation referred to as a “contravention notice”) to a person who is an originator, sponsor, original lender or SSPE, as the case may be, to, not later than the date specified in the notice, take, or refrain from taking such actions as are specified in the notice for the purpose of -
(a) ensuring compliance by the person concerned with the Securitisation Regulation or these Regulations, or
(b) preventing any person from contravening or continuing to contravene a provision of the Securitisation Regulation or these Regulations.
(2) A contravention notice shall -
(a) state that the Bank is of the opinion referred to in paragraph (1),
(b) state the reason for that opinion,
(c) identify the provisions of the Securitisation Regulation or these Regulations in respect of which the Bank has formed the opinion,
(d) direct the person to remedy the contravention or the matters occasioning the notice by a date specified in the notice that shall not be earlier than the end of the period within which an appeal may be made under paragraph (6),
(e) include information regarding the making of an appeal under paragraph (6),
(f) include such matters (if any) as the Bank considers appropriate, and
(g) be signed and dated by a person duly authorised by the Bank to do so.
(3) A person on whom a contravention notice has been issued under this Regulation who is of the opinion that the contravention notice has been complied with, shall confirm in writing to the Bank that the matters referred to in the notice have been so remedied.
(4) Where a person to whom a contravention notice has been issued under this Regulation confirms in writing to the Bank in accordance with paragraph (3), that the matters referred to in the contravention notice have been remedied, the Bank shall, on being satisfied that the matters have been so remedied, not later than 10 days from receipt of such confirmation, give notice to the person concerned of compliance with the contravention notice.
(5) Where the Bank is satisfied that erroneous or incomplete details have been made available to a securitisation repository by a person who is an originator, sponsor, original lender or SSPE, as the case may be, in respect of a securitisation it shall, by way of a contravention notice issued in accordance with this Regulation, have the power to direct the person that reported such details to rectify any errors or omissions to the satisfaction of the Bank and to subsequently resubmit those details to the securitisation repository without delay.
(6) A person aggrieved by a contravention notice may, within 14 days beginning on the day on which the notice is issued to him or her, appeal against the notice to the Court and, in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.
(7) A person who appeals under paragraph (6) shall at the same time notify the Bank of the appeal and the grounds for the appeal, and the Bank shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.
(8) Where an appeal under paragraph (6) is made, and the contravention notice is not cancelled, the notice as confirmed or varied shall take effect on the later of -
(a) the day next following the day on which the notice is confirmed or varied on appeal or the appeal is withdrawn, or
(b) the day specified in the notice.
(9) Where there is no appeal under paragraph (6), the contravention notice shall take effect on the later of -
(a) the end of the period for making an appeal, or
(b) the day specified in the notice.
(10) The Bank may withdraw a contravention notice at any time.
(11) Where the person -
(a) fails to take, or fails to refrain from, such actions as are specified in the contravention notice, or
(b) fails to rectify any errors or omissions in the details concerned or has not resubmitted the rectified details to the securitisation repository in accordance with paragraph (5),
the Bank may apply, by motion, to the Court for a compliance order.
(12) The Court may hear an application under paragraph (11) only if it is satisfied that a copy of the application has been served on the person concerned.
(13) The Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under paragraph (11) and the Court may not refuse interim or interlocutory relief solely on the basis that the Bank may not suffer damage if relief were not granted pending determination of the application.
(14) On the hearing of an application made under paragraph (11), the Court may make an order requiring the person to comply with the contravention notice or may refuse the application.
(15) Where the Court makes an order under paragraph (14), it may make such ancillary orders as it considers appropriate.
(16) Where the Court is satisfied that it is desirable, because of the nature or the circumstances of the case, or having regard to the interests of justice, then the whole or any part of proceedings relating to an application under paragraph (6) or (11) before it may be heard otherwise than in public.
Privilege
num: 13
paragraphs: (1) Where a person refuses to produce information or give access to it, pursuant to a requirement under these Regulations, on the grounds that the information contains privileged legal material, the Bank may, at any time not later than 6 months (or such longer period as the Court may allow) of the date of such refusal, apply to the Court for a determination as to whether the information, or any part of the information, is privileged legal material where in relation to the information concerned -
(a) the Bank has reasonable grounds for believing that it is not privileged legal material, or
(b) due to the manner or extent to which such information is presented together with any other information, it is impossible or impractical to extract only such information.
(2) A person who refuses to produce information or give access to it, pursuant to a requirement under these Regulations, on the grounds that the information contains privileged legal material shall preserve the information and keep it in a safe and secure place and manner pending the determination of an application under paragraph (1) and shall, if the information is so determined not to be privileged legal material, produce it in accordance with such order as the Court considers appropriate.
(3) A person shall be considered to preserve information, where the person has complied with such requirements as may be imposed by an authorised officer under paragraph (e), (i) or (j) of Regulation 9(1).
(4) Where an application is made by the Bank under paragraph (1), the Court may give such interim or interlocutory directions as the Court considers appropriate including, without limiting the generality of the foregoing, directions as to the appointment of a person with suitable legal qualifications possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the Court considers to be appropriate for the purpose of -
(a) examining the information, and
(b) preparing a report for the Court with a view to assisting or facilitating the Court in the making by the Court of its determination as to whether the information is privileged legal material.
(5) An application under paragraph (1) -
(a) shall be by motion, and
(b) may, where the Court is satisfied that it is desirable, because of the nature or the circumstances of the case, or having regard to the interests of justice, then the whole or any part of proceedings relating to an application under this Regulation before it may be heard otherwise than in public.
(6) In this Regulation, “privileged legal material” means information which, in the opinion of the Court, a person is entitled to refuse to produce on the grounds of legal professional privilege.
Part 4
Enforcement in relation to non-regulated financial service providers
Interpretation
num: 14
paragraphs: In this Part —
“adverse assessment” means an assessment in which the assessor has decided that the assessee is committing or has committed a prescribed contravention;
“assessee” means a person the subject of an assessment;
“assessment” means an assessment referred to in Regulation 15;
“assessor” means an assessor appointed by the Bank under Regulation 15;
“contravene” includes a failure to comply, and also includes -
(a) attempting to contravene,
(b) aiding, abetting, counselling or procuring a person to commit a contravention,
(c) inducing, or attempting to induce, a person (whether by threats or promises or otherwise) to commit a contravention,
(d) being (directly or indirectly) knowingly concerned in, or a party to, a contravention, and
(e) conspiring with others to commit a contravention;
“prescribed contravention” means a negligent or intentional contravention by a non-regulated financial service provider of these Regulations or the Securitisation Regulation;
“sanction” means any sanction referred to in Regulation 24;
“specified sanction”, in relation to an adverse assessment, means a sanction or sanctions referred to in Regulation 15(8)(c) that may be imposed on the assessee.
Appointment of assessor
num: 15
paragraphs: (1) Where the Bank has reason to suspect that a prescribed contravention is being committed or has been committed by a person who is a non-regulated financial service provider (in this Part referred to as the “assessee”), the Bank may appoint an assessor (or, if the Bank thinks fit to do so, more than one assessor) to conduct an assessment as to -
(a) whether or not the assessee is committing or has committed the contravention, and
(b) where the assessor finds that the assessee is committing or has committed the contravention, the specified sanction or sanctions, if any, which the assessor considers is or are appropriate to be imposed on the assessee in respect of the contravention.
(2) The Bank may appoint an assessor who is not an officer, employee or official of the Bank and any such assessor so appointed is an agent of the Bank for the purpose of performing the functions of an assessor under this Part.
(3) The Bank shall provide the assessor with such administrative services (including technical and legal advice) as the Bank considers necessary to enable the assessor to perform the assessor’s functions.
(4) The assessor shall, as soon as is practicable after his or her appointment as an assessor, give notice of the appointment to the assessee.
(5) The notice under paragraph (4) shall contain-
(a) a statement that the assessor is appointed by the Bank under this Regulation,
(b) a statement in summary form of the grounds for conducting the assessment,
(c) a statement that, within a reasonable time specified by the assessor in the notice, the assessee may -
(i) make submissions in writing to the assessor, and
(ii) request the assessor to be permitted to make oral submissions about the matters to which the notice relates,
and
(d) a statement that the assessor shall conduct the assessment even if no submissions referred to in subparagraph (c) are made.
(6) The assessor shall -
(a) consider any submissions referred to in paragraph (5)(c) made by the assessee, and
(b) conduct such investigations relating to the assessment as the assessor considers appropriate before issuing the assessment.
(7) The assessor shall issue the assessment to the Bank when the assessment is made.
(8) Where the assessor decides that a prescribed contravention is being committed or has been committed, the assessor shall ensure that the assessment includes -
(a) a statement of the grounds upon which the assessor made the assessment that the assessee is committing or has committed the contravention,
(b) a statement in summary form of the evidence upon which the assessment is based, and
(c) a statement of the sanction or sanctions, if any, which the assessor considers is or are appropriate to be imposed on the assessee in respect of the contravention.
(9) The appointment of an assessor may be for a specified or unspecified period.
(10) Subject to Regulations 20 and 21(2), the assessment shall constitute the decision of the Bank, and references in this Part to an adverse assessment shall be construed accordingly.
Revocation of appointment of assessor
num: 16
paragraphs: (1) Where the Bank is satisfied that an assessor has contravened paragraph (2) or is incapacitated, the Bank may revoke the appointment of the assessor at any time.
(2) An assessor (including a person proposed for appointment as an assessor) shall-
(a) disclose to the Bank any material interest that the assessor may have in any matter that may arise during the assessment,
(b) disclose to the Bank any actual or potential conflict of interest that the assessor may have in conducting an assessment,
(c) not use any information obtained during an assessment for any purpose other than the performance of the assessor’s functions under this Part,
(d) not engage in misconduct during the assessment,
(e) perform the assessor’s functions in accordance with the procedures and requirements set out in this Part, and
(f) issue an assessment that is not contrary to law.
Power to require witnesses to appear and give evidence
num: 17
paragraphs: (1) The assessor may, by notice given in or outside the State to a person, require the person to do one or more of the following:
(a) appear before the assessor to give evidence (including giving evidence on oath);
(b) produce documents specified in the notice which are in the person’s custody or control;
(c) for the purposes of subparagraph (a) or (b), attend before the assessor from day to day, unless excused from attendance or released from further attendance by the assessor.
(2) The assessor may administer oaths for the purposes of the evidence referred to in paragraph (1)(a).
(3) A witness at a hearing before the assessor has the same liabilities, privileges and immunities as a witness before the Court.
(4) Where a person (in this paragraph referred to as “person concerned”) -
(a) fails to comply with a notice under paragraph (1),
(b) threatens or insults the assessor or any witness or person required to attend before the assessor,
(c) interrupts the proceedings of, or does not behave in an appropriate manner before, the assessor,
(d) obstructs or attempts to obstruct the assessor,
(e) discloses, or authorises the disclosure of, evidence given before the assessor or any of the contents of a document produced to the assessor that the assessor has instructed not to be disclosed, or
(f) does anything else that, if the assessor were a court of law having power to commit for contempt, would be contempt for that court, then-
(i) the assessor may apply to the Court for an order requiring the person concerned to do one or both of the following:
(I) comply with the notice under paragraph (1);
(II) discontinue or not repeat the behaviour falling within any of the provisions of subparagraphs (b) to (f), or behaviour of any similar kind,
and
(ii) the Court, if satisfied that there is no reasonable excuse for the failure to comply with the notice under paragraph (1) or for the behaviour concerned, as the case may be, may grant the order and such other orders as it considers appropriate to ensure that the person concerned cooperates with the assessor.
Referral to Court on question of law
num: 18
paragraphs: (1) The Bank or the assessor may (including at the request of the assessee) refer a question of law arising in an assessment to the Court for determination by the Court.
(2) Where a question of law is referred under paragraph (1) -
(a) the assessor shall send to the Court all documents before the assessor that are relevant to the matter in question, and
(b) at the end of the proceedings in the Court in relation to the reference, the Court shall cause the documents to be returned to the assessor.
Assessee to be issued copy of any adverse assessment, etc.
num: 19
paragraphs: (1) Where the assessment of an assessor is that the assessee is committing or has committed a prescribed contravention, the Bank shall -
(a) issue the assessee with a copy of the adverse assessment (or, as the Bank thinks fit, so much of the adverse assessment as constitutes the statement referred to in Regulation 15(8)), and
(b) advise the assessee that -
(i) the assessee may appeal against the adverse assessment to the Court under Regulation 20, and
(ii) the Bank may apply to the Court under Regulation 22 for an order confirming the adverse assessment (including the specified sanctions).
(2) Where the assessment of an assessor is that the assessee is neither committing nor has committed a prescribed contravention, the Bank shall issue the assessee with a statement to that effect.
Right of appeal against adverse assessment (including specified sanctions)
num: 20
paragraphs: (1) The assessee may appeal against an adverse assessment (including the specified sanctions) to the Court not later than 28 days after the Bank has complied with Regulation 19(1) in relation to the assessee, or within such further period as the Court allows.
(2) Where the Court is satisfied, because of the nature or the circumstances of the case or otherwise in the interests of justice, that it is desirable that the whole or any part of proceedings relating to an appeal under paragraph (1) should not be heard in public then, where the Court so directs, the proceedings may be heard otherwise than in public.
(3) The Court may, pending the hearing and determination of an appeal under paragraph (1), make such interim or interlocutory orders as the Court considers necessary in the circumstances.
(4) The Court shall determine an appeal under paragraph (1) by making -
(a) subject to paragraph (6), an order confirming, varying or setting aside the adverse assessment (including the specified sanctions), whether in whole or in part, or
(b) an order remitting the case to be decided again by the Bank in accordance with the directions of the Court.
(5) The determination of the Court on the hearing of an appeal under paragraph (1) shall be final, except that a party to the appeal may apply to the Court of Appeal to review the determination on a question of law.
(6) No variation of an adverse assessment under paragraph (4)(a) may provide for the imposition of a sanction on the assessee which is not a sanction referred to in Regulation 24(a) to (g).
Power to correct assessments
num: 21
paragraphs: (1) Where the assessor or the Bank is satisfied that there is an obvious error in the text of an assessment, the assessor or the Bank, as the case may be, may alter the text of the assessment to remove the error.
(2) Where the text of an assessment is altered under paragraph (1), the text as so altered shall be taken to be the decision of the Bank under Regulation 15(10).
(3) In paragraph (1), “obvious error”, in relation to the text of an assessment, includes -
(a) a clerical or typographical error,
(b) an error arising from an accidental slip or omission, or
(c) a defect of form.
When specified sanctions take effect
num: 22
paragraphs: (1) Where -
(a) no appeal under Regulation 20 against the adverse assessment (including the specified sanctions) is lodged with the Court within the period for lodging an appeal, or
(b) an appeal under Regulation 20 against the adverse assessment (including the specified sanctions) which has been lodged with the Court within the period for lodging the appeal is withdrawn or abandoned,
then the specified sanctions pursuant to Regulation 15(8)(c), as confirmed or varied in the order, if any, obtained under Regulation 23(2)(a), shall take effect on the date of that order or such other date as the Court may specify in that order.
(2) Where an appeal under Regulation 20 against the adverse assessment is lodged with the Court within the period allowed for lodging the appeal, then the specified sanctions pursuant to Regulation 15(8)(c), as confirmed or varied in the order, if any, obtained under 20(4)(a), shall take effect on the date of that order or such other date as the Court may specify in that order.
Enforcement of adverse assessment (including specified sanctions)
num: 23
paragraphs: (1) Where -
(a) no appeal under Regulation 20 against an adverse assessment (including the specified sanctions) is lodged with the Court within the period for lodging an appeal, or
(b) an appeal under Regulation 20 against an adverse assessment (including the specified sanctions) has been lodged with the Court within the period for lodging the appeal but is withdrawn or abandoned,
then the Bank may apply to the Court for an order confirming the adverse assessment (including the specified sanctions).
(2) The Court shall determine an application under paragraph (1) by making -
(a) subject to paragraph (7), an order confirming, varying or setting aside the adverse assessment (including the specified sanctions) whether in whole or in part, or
(b) an order remitting the case to be decided again by the Bank in accordance with the directions of the Court.
(3) The Court shall not hear an application under paragraph (1) unless -
(a) the assessee appears at the hearing as respondent to the application, or
(b) if the assessee does not so appear, the Court is satisfied that a copy of the application under paragraph (1) has been served on the assessee.
(4) Where the Court is satisfied that it is desirable that the whole or any part of proceedings relating to an application under paragraph (1) be heard otherwise than in public because of the nature or the circumstances of the case or having regard to the interests of justice then the Court may make an order that the proceedings shall, in whole or in part, be heard otherwise than in public.
(5) The Court may, on an application under paragraph (1), make such interim or interlocutory orders as the Court considers necessary in the circumstances.
(6) The determination of the Court on the hearing of an application under paragraph (1) shall be final, except that the Bank or the respondent, if any, may apply to the Court of Appeal to review the determination on a question of law.
(7) No variation of an adverse assessment under paragraph (2)(a) may provide for the imposition of a sanction on the assessee that is not a sanction referred to in Regulation 24(1)(a) to (g).
Sanctions that may be imposed by Bank
num: 24
paragraphs: (1) In the case of an adverse assessment, the Bank may impose on the assessee concerned the following sanctions:
(a) an order requiring the person responsible for the prescribed contravention to cease the conduct and to desist from a repetition of that conduct;
(b) a public statement which indicates the identity of the person responsible and the nature of the prescribed contravention in accordance with Article 37 of the Securitisation Regulation;
(c) a temporary ban preventing any member of the originator’s, sponsor’s or SSPE’s management body, or any natural person who is held responsible for such a prescribed contravention, from exercising management functions in such undertakings;
(d) where the prescribed contravention is a contravention referred to in point (e) or (f), as the case may be, of Article 32.1 of the Securitisation Regulation, temporary ban preventing the originator and sponsor from notifying under Article 27.1 of the Securitisation Regulation that a securitisation meets the requirements set out in Articles 19 to 22 or Articles 23 to 26 of the Securitisation Regulation;
(e) maximum administrative pecuniary sanctions of at least twice the amount of the profits gained or losses avoided because of the prescribed contravention where those profits gained or losses avoided can be determined by the Bank, even if those sanctions exceed the amounts referred to in subparagraphs (f) and (g);
(f) in the case of a natural person, a pecuniary sanction not exceeding €5,000,000;
(g) in the case of a of a legal person, a pecuniary sanction -
(i) not exceeding €5,000,000, or,
(ii) of up to 10 per cent of the total annual net turnover of the legal person according to the last available accounts approved by the management body.
(2) For the purposes of paragraph (1)(g)(i) and (ii), where the legal person concerned is a parent undertaking or a subsidiary of the parent undertaking which has to prepare consolidated financial accounts in accordance with Directive 2013/34/EU of the European Parliament and of the Council of 26 June 201321 , the relevant total annual net turnover shall be the total net annual turnover or the corresponding type of income in accordance with the relevant accounting legislative acts according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking.
Person not liable to be penalised twice for same contravention
num: 25
paragraphs: (1) A sanction referred to in Regulation 24, in respect of a prescribed contravention, shall not be imposed on an assessee where —
(a) the assessee has been found guilty or not guilty of having committed an offence under a provision of these Regulations, and
(b) all or some of the acts constituting that offence also constitute the prescribed contravention.
(2) Where —
(a) a sanction, referred to in Regulation 24 has been or is to be imposed on the assessee by virtue of an order obtained under Regulation 20(4) or 23(2)(a), and
(b) the acts that constitute the prescribed contravention to which the sanction relates also constitute an offence under a law of the State,
then the assessee is not, in respect of those acts, liable to be prosecuted or punished for that offence under that law.
Power of the Bank to resolve suspected contraventions, etc.
num: 26
paragraphs: (1) Where the Bank has reason to suspect, based on reasonable grounds, that an assessee is committing or has committed a prescribed contravention, it may enter into an agreement in writing with the assessee to resolve the matter (including at any time before an assessment, if any, has been issued in respect of the assessee).
(2) An agreement entered into under paragraph (1) -
(a) is binding on the Bank and the assessee, and
(b) may include terms under which the assessee accepts the imposition of sanctions.
(3) An agreement entered into under paragraph (1) may be enforced by the Bank or the assessee in a court of competent jurisdiction.
Part 5
Enforcement in relation to regulated financial service providers
Sanctions
num: 27
paragraphs: (1) Notwithstanding the sanctions set out in section 33AQ of the Act of 1942, any of the sanctions referred to in paragraph (2) may be imposed by the Bank where the provisions of the Act of 1942 are invoked —
(a) following an inquiry under section 33AO of the Act of 1942, or
(b) in accordance with section 33AR or section 33AV of the Act of 1942,
in respect of any negligent or intentional contravention of these Regulations or the Securitisation Regulation and, for the purposes of these Regulations, any reference in the Act of 1942 to the sanctions set out in section 33AQ of that Act is to be read as a reference to the sanctions set out in this Regulation.
(2) The sanctions mentioned in paragraph (1) are:
(a) an order requiring the person responsible for the contravention to cease the conduct and to desist from a repetition of that conduct;
(b) a public statement which indicates the identity of the person responsible for the contravention and the nature of the contravention in accordance with Article 37 of the Securitisation Regulation;
(c) a temporary withdrawal of the authorisation referred to in Article 28 of the Securitisation Regulation for the third party authorised to check the compliance of a securitisation with Articles 19 to 22 or Article 23 to 26 of the Securitisation Regulation;
(d) a temporary ban preventing any member of the originator’s, sponsor’s or SSPE’s management body, or any natural person who is held responsible for such a contravention, from exercising management functions;
(e) where the contravention is a contravention referred to in point (e) or (f), as the case may be, of Article 32.1 of the Securitisation Regulation, a temporary ban preventing the originator and sponsor from notifying under Article 27.1 of the Securitisation Regulation that a securitisation meets the requirements set out in Articles 19 to 22 or Articles 23 to 26 of the Securitisation Regulation;
(f) maximum administrative pecuniary sanctions of at least twice the amount of the profits gained or losses avoided because of the contravention where those profits gained or losses avoided can be determined by the Bank, even if those sanctions exceed the amounts referred to in subparagraphs (g) and (h);
(g) in the case of a natural person, a pecuniary sanction not exceeding €5,000,000;
(h) in the case of a legal person, a pecuniary sanction —
(i) not exceeding €5,000,000, or
(ii) of up to 10 per cent of the total annual turnover of the legal person according to the last available accounts approved by the management body.
(3) For the purposes of paragraph (2)(h)(i) and (ii), where the legal person concerned is a parent undertaking or a subsidiary of the parent undertaking which has to prepare consolidated financial accounts in accordance with Directive 2013/34/EU of the European Parliament and of the Council of 26 June 201322 , the relevant total annual net turnover shall be the total net annual turnover or the corresponding type of income in accordance with the relevant accounting legislative acts according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking.
Right of appeal
num: 28
paragraphs: Any decision taken or sanction imposed under the Securitisation Regulation or these Regulations is an appealable decision for the purposes of Part VIIA of the Act of 1942.
Part 6
General Provisions
Application of sanctions
num: 29
paragraphs: In the case of a contravention of the Securitisation Regulation or these Regulations —
(a) the assessor, when determining the type and level of sanction or sanctions to be imposed on an assessee under Regulation 15(8)(c), or
(b) the Bank, when determining the type and level of sanction or sanctions to be imposed on a regulated financial services provider,
in respect of such a contravention, shall take into account the extent to which the contravention is intentional or results from negligence and all other relevant circumstances, including, where appropriate:
(i) the materiality, gravity and the duration of the contravention;
(ii) the degree of responsibility of the person responsible for the contravention;
(iii) the financial strength of the person responsible for the contravention, as indicated in particular by the total turnover of the person (in the case of a legal person) or the annual income of the person (in the case of a natural person);
(iv) the level of -
(I) the profits gained or losses avoided by the person responsible for the contravention, or
(II) the losses for third parties derived from the contravention,
insofar as those profits or losses can be determined;
(v) the level of cooperation of the person responsible for the contravention, with the assessor or the Bank, as the case may be, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person;
(vi) previous contraventions by the person responsible for the contravention.
Publication of decisions
num: 30
paragraphs: (1) Subject to paragraph (5), the Bank shall publish all decisions imposing a sanction for a contravention of the Securitisation Regulation or these Regulations on its official website.
(2) A publication under paragraph (1) shall -
(a) be published without undue delay after the person sanctioned is informed of that decision, and
(b) include at least information on the type and nature of the contravention and the identity of a natural or legal person on whom the sanction has been imposed.
(3) Where the decision to impose a sanction is subject to an appeal before a court or tribunal in the State, the Bank shall, without undue delay, also publish on its official website information on the appeal status and outcome thereof.
(4) The Bank shall publish on its official website all decisions annulling a previous decision to impose a sanction.
(5) Where the publication of the identity of a legal person or of the personal data of a natural person is considered by the Bank to be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data, or where publication jeopardises the stability of financial markets or an ongoing criminal investigation, or where the publication would cause, in so far as it can be determined, disproportionate damages to the person involved, the Bank shall do one of the following:
(a) delay the publication of the decision to impose the sanction until the moment when the reasons for non-publication cease to exist;
(b) publish the decision to impose the sanction on an anonymous basis in a manner which is in conformity with the law of the State, if such anonymous publication ensures effective protection of the personal data;
(c) not publish the decision to impose a sanction at all in the event that the options set out in subparagraphs (a) and (b) are considered to be insufficient to ensure:
(i) that the stability of financial markets would not be put in jeopardy, or
(ii) the proportionality of the publication of such decisions with regard to measures which are deemed to be of a minor nature.
(6) In the case of a decision to publish a sanction on an anonymous basis, the publication of the relevant data may be postponed for a reasonable period where it is envisaged that the reasons for anonymous publication will cease to apply within that period.
(7) The Bank shall inform ESMA of all administrative sanctions imposed including any appeal in relation thereto and the outcome thereof.
(8) The Bank shall ensure that information published under this Regulation remains on its official website for at least 5 years after its publication, provided that any personal data contained in such publication shall be kept on the website for such period as is necessary in accordance with the Data Protection Acts 1988 to 2018.
Part 7
Amendments of Act of 1942
Amendment of Act of 1942
num: 31
paragraphs: The Act of 1942 is amended -
(a) in section 2(2A) —
(i) in paragraph (au), by substituting “2017;” for “2017.”, and
(ii) by inserting the following paragraph after paragraph (au):
“(av) Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 201723 .”,
(b) in section 33AK(10), in the definition of “supervisory EU legal acts”, by inserting the following paragraph after paragraph (ae):
“(af) Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 201724 ;”,
(c) in section 33AN -
(i) in subsection (1) -
(I) by inserting the following definition:
“ “Securitisation Regulation” means Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 201725 ;”,
(II) in the definition of “designated enactment”, by inserting “, or the Securitisation Regulation but (in relation to the Securitisation Regulation) wherever and only in so far as it imposes a requirement on a person who is not a regulated financial service provider,” after “but (in relation to the last-mentioned Regulation) wherever and only in so far as it imposes a requirement on a person who is not a regulated financial service provider”,
and
(III) in the definition of “designated statutory instrument”, by inserting “, or the European Union (General Framework for Securitisation and Specific Framework for Simple Transparent and Standardised Securitisation) Regulations 2018 ( S.I. No. 656 of 2018 ) but (in relation to the European Union (General Framework for Securitisation and Specific Framework for Simple Transparent and Standardised Securitisation) Regulations 2018) wherever and only in so far as they impose a requirement on a person who is not a regulated financial service provider,” after “but (in relation to the last-mentioned Regulation) wherever and only in so far as they impose a requirement on a person who is not a regulated financial service provider”,
(d) in section 33BC, by inserting the following subsection after subsection (14):
“(15) This section does not apply where Regulation 6 of the European Union (General Framework for Securitisation and Specific Framework for Simple Transparent and Standardised Securitisation) Regulations 2018 ( S.I. No. 656 of 2018 ) applies.”,
and