IE-1997-act-8 — Central Bank Act 1997 | Law Reform

PART I Preliminary and General 1. — (1) This Act may be cited as the Central Bank Act, 1997. (2) This Act shall come into operation on such day or days as may be appointed by order or orders made by the Minister, either generally or with reference to any particular purpose or provision, and different days may be appointed for different purposes and different provisions of this Act. (3) This Act, other than sections 3 , 36 to 49 , 60 , 64 to 68 , 78 to 83 and 85 and the Central Bank Acts, 1942 to 1989, shall be construed together as one Act and may be cited together as the Central Bank Acts, 1942 to 1997 . 2. — (1) In this Act, unless the context otherwise requires— “ the Act of 1942 ” means the Central Bank Act, 1942; “ the Act of 1971 ” means the Central Bank Act, 1971; “ the Act of 1989 ” means the Central Bank Act, 1989; F1 [ ‘Bank’ means the Central Bank F2 [ … ] of Ireland; ] F3 [ ‘Central Bank Acts’ means the Central Bank Act 1942 as amended from time to time, and includes all Acts that are to be construed together with that Act as one Act; ] ‘contravene’ includes fail to comply; “ the Court ” means the High Court; “ credit institution ” has the meaning assigned to it by the Regulations of 1992; F3 [ ‘designated enactment’ means an enactment specified in Part 1 of Schedule 2 to the Central Bank Act 1942; ] F3 [ ‘designated statutory instrument’ means a statutory instrument specified in Part 2 of Schedule 2 to the Central Bank Act 1942; ] F3 [ ‘EEA country’ means a country that is a member of the European Economic Area; ] “ enactment ” means any Act or instrument made thereunder; “ financial institution ” means an undertaking other than a credit institution providing any one or more of the financial services set out in the Schedule to the Regulations of 1992; “ insurance undertaking ” has the meaning assigned to it by the Insurance Act, 1989 ; “ the Minister ” means the Minister for Finance; “ mortgage lender ” means a credit institution or other person whose business includes the making of housing loans where “ housing loan ” means an agreement for credit on the security of a mortgage of a freehold or leasehold estate or interest in a house where— ( a ) the loan is made for the purpose of enabling the borrower to provide or improve the house or to purchase the said estate or interest, or ( b ) the loan is made for the purpose of refinancing a loan within the meaning of paragraph (a) , or ( c ) the house is to be used as the principal residence of the borrower or his dependants; “ prescribed ” means prescribed by Regulations made by the Minister; F3 [ ‘publication’ includes publication on an Internet website; ] F3 [ ‘publish’ includes publish by means of the Internet; ] F3 [ ‘record’ means any record of information, however compiled, recorded or stored, and includes— ( a ) any book, a register and any other document containing information, and ( b ) any disc, tape or other article from which information is capable of being produced in any form capable of being reproduced visually or aurally; ] F3 [ ‘regulated financial service provider’ has the same meaning as in section 2(1) of the Act of 1942; ] “ the Regulations of 1992 ” means the European Communities (Licensing and Supervision of Credit Institutions) Regulations, 1992 (S.I. No. 395 of 1992); “ statutory functions ”, in relation to the Bank, means its functions— ( a ) under the Central Bank Acts F4 [ … ] , ( b ) imposed by virtue of F5 [ … ] F6 [ … ] the European Communities (Licensing and Supervision of Credit Institutions) Regulations, 1992 (S.I. No. 395 of 1992), or the European Communities (Consolidated Supervision of Credit Institutions) Regulations, 1992 (S.I. No. 396 of 1992), ( c ) under the Unit Trusts Act, 1990 (No. 37 of 1990), ( d ) under the Building Societies Act, 1989 (No. 17 of 1989), ( e ) under the Companies Act, 1990 (No. 33 of 1990), ( f ) under the Trustee Savings Banks Act, 1989 (No. 21 of 1989), ( g ) under the Investment Limited Partnerships Act, 1994 (No. 24 of 1994), ( h ) under the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989), and any instruments amending that instrument, ( i ) under the Stock Exchange Act, 1995 (No. 9 of 1995), ( j ) under the Investment Intermediaries Act, 1995 (No. 11 of 1995), and ( k ) under any other enactment; “ subsidiary ” has the meaning assigned to it by section 155 of the Companies Act, 1963. (2) For the purposes of the Central Bank Acts F4 [ … ] , “ deposit ”, on or after the commencement of this section, means a sum of money accepted on terms under which it is repayable with or without interest whether on demand or on notice or at a fixed or determinable future date. F3 [ (2A) For the purposes of this Act, a person is concerned in the management of a body corporate, if the person is in any way involved in directing, managing or administering the affairs of the body or firm. ] (3) In this Act a reference to a section, a Part or a Schedule is a reference to a section or a Part of, or a Schedule to, this Act, unless it is indicated that reference to some other enactment is intended. (4) In this Act a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended. (5) In this Act a reference to an enactment shall be construed as a reference to that enactment as amended or adapted, whether before or after the commencement of this section, by or under any subsequent enactment. 3. — Every regulation or order made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or order is passed by either such House within the next 21 days on which that House has sat after the regulation or order is laid before it, the regulation or order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. 4. — (1) The Acts mentioned in column (2) of Part I of the Schedule are hereby repealed to the extent specified in column (3) of that Schedule. (2) The instrument mentioned in column (2) of Part II of the Schedule is hereby revoked to the extent specified in column (3) of that Schedule. PART II Regulation of Payment Systems 5. — In this Part— “ existing payment system ” means a payment system operating at the time of the commencement of this section; “ payment system ” means a system established in the State, or proposed to be established in the State, by any person, in which credit institutions or financial institutions participate and which provides for— ( a ) all or any of the following, namely, the processing, handling, clearance and settlement of any means of payment or of any securities, or ( b ) the payment of any moneys by that means of payment, by or as between the members of the system or third parties, whether or not the processing, handling, clearance, settlement or payment of any of the moneys takes place in part or in whole within the State or outside the State; “ rules ”, in relation to a payment system or a proposed payment system, means the rules governing or proposed to govern the membership and operation of the payment system. 6. — The Bank may become a member of, or be a party to the establishment or operation of, a payment system. 7. — No payment system, other than an existing payment system, shall be established or operated unless the persons who propose to establish the system have submitted the rules for such a proposed payment system (in this part referred to as a “ proposed system ”) to the Bank for approval and the Bank has approved of those rules. 8. — (1) Within three months of the passing of this Act, every payment system which was in operation before such passing (in this Part referred to as “ an existing system ”) shall— ( a ) submit its rules to the Bank for approval, or ( b ) cease to operate. (2) Pending a decision by the Bank to approve or not to approve of the rules of an existing system submitted to it under subsection (1) (a) , the Bank may— ( a ) impose on the system such conditions or requirements as it considers appropriate to impose, or ( b ) issue a direction under section 12 as if the existing system were a system the rules of which had been approved of by the Bank. (3) The operators of a payment system may appeal to the Court against the imposition of any condition or requirement or the giving of a direction under this section. (4) On hearing an appeal under subsection (3) of this section, the Court may confirm, vary or rescind any condition, requirement or direction imposed under this section. 9. — (1) The Bank shall decide to approve or refuse to approve the rules of a system within three months of the receipt of a submission under section 8 (1) and where the Bank approves of the rules of an existing system or for a proposed system, it may— ( a ) make its approval subject to conditions or requirements or both as it thinks fit, and ( b ) at any time after approval, impose conditions or requirements or both on any class of payment system or amend or revoke any condition or requirement or both to which this subsection relates, whether or not previously amended by this subparagraph. (2) Every condition or requirement imposed to which this subsection relates and every amendment thereto or revocation thereof shall be imposed, amended or revoked as the Bank sees fit in the interest of the proper and orderly regulation of the payment system concerned and of competition between payment systems and every such condition or requirement may be imposed on either or both— ( a ) that class of payment system, and ( b ) the members of that payment system. (3) In respect of any condition or requirement to which subsection (1) (b) relates, a condition or requirement shall not be imposed, amended or revoked until— ( a ) the Bank has notified the operators or, when appropriate, the members of the payment system of its intention to so impose, amend or revoke, and ( b ) the Bank has considered any representations made by the payment system or any member thereof within such time limit as the Bank may specify when notifying the payment system. (4) The approval by the Bank of the rules of, or for, a payment system shall not constitute a warranty as to the solvency of that system or of any member of that system and the Bank shall not be liable, by reason of its approval, in respect of any losses incurred through the insolvency or default of that system or any of its members. (5) An application for approval of the rules of an existing system or for a proposed system shall be in such form and contain such particulars as the Bank may from time to time determine. (6) The Bank shall not approve of the rules of an existing system or a proposed system unless the existing system or proposed system is a company incorporated under the Companies Acts, 1963 to 1990. (7) The operator of an existing system or the promoter of a proposed system may appeal to the Court against the imposition of any condition or requirement within 21 days of the imposition thereof and the Court may, on hearing an appeal under this section, confirm, vary or rescind any condition or requirement under this section. 10. — (1) The Bank shall not refuse to approve of the rules of an existing system or for a proposed system without the consent of the Minister and unless it is satisfied that the approval would not be in the interest of the proper and orderly regulation of such a system, and the Minister shall not consent to the refusal unless he or she is satisfied that the approval would not be in the interest of the proper and orderly regulation of such a system. (2) Whenever the Bank proposes to refuse to approve of the rules of an existing system or for a proposed system— ( a ) it shall notify the system or, in the case of a proposed system, the promoter of the system, in writing that it intends to seek the consent of the Minister to the proposed refusal and of its reasons for the refusal and that the system or the promoter may, within the period of 21 days after the date of the giving of the notification, make representations in writing to the Minister in relation to the proposed refusal, ( b ) the operators of the system or the promoter may make such representations in writing to the Minister within the time aforesaid, and ( c ) the Minister shall, before deciding to give or withhold his or her consent, consider any representations duly made to him or her under this subsection in relation to the proposed refusal. F7 [ (3) In the performance of any function or duty by the Bank, or the exercise of any power by the Bank, required by or under the Treaty or the Statute, subsections (1) and (2) shall not apply. ] 11. — Without prejudice to the provisions of section 9 , section 17 (which relates to books and records of holders of licences) (as amended by section 36 of the Act of 1989) of the Act of 1971 shall apply as if— ( a ) every payment system to which this Part applies, and ( b ) every member of that system, who is not at the time of the commencement of this section the holder of a licence for the purpose of the Central Bank Acts, 1942 to 1989, and this Act, were the holder of such a licence. 12. — (1) Where the Bank is satisfied that a payment system or any member thereof has failed or is failing to comply with a condition or requirement under section 8 (2) (a) or section 9 , the Bank may give a direction to— ( a ) the payment system to cease such activities as the Bank may specify, and ( b ) any or all of the members of the payment system to cease operating as a member or members of that system, for a specified period or until further notice by the Bank. (2) ( a ) The payment system to which, or member or members thereof to whom, a direction is given under subsection (1) may apply in a summary manner to the Court for, and the Court may grant, an order setting aside the direction. ( b ) The Bank may apply in a summary manner to the Court to have a direction by it under this section confirmed by the Court. (3) The Court when considering the matter may make such interim or interlocutory order as it considers appropriate. (4) 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, the whole or any part of proceedings under this section may be heard otherwise than in public. 13. — (1) The Bank may— ( a ) revoke an approval of the rules of a payment system if the system to which it was granted so requests, ( b ) with the consent of the Minister, revoke an approval of the rules of a payment system, if— (i) the system— (I) has not commenced to operate within 12 months of the date on which the approval was granted, or (II) has ceased operating for a period of more than one month, (ii) the payment system being a company, the company is being wound up, (iii) the payment system (being an existing system) or the promoter of a proposed system has obtained the approval of the Bank through false statements or any other irregular means, (iv) the payment system becomes unable to meet its obligations to creditors or suspends payment lawfully due by the system or by any member thereof, or (v) since the grant of the approval, the circumstances relevant to the grant have changed and are such that, if an application for an approval were made in the changed circumstances, it would be refused. (2) Whenever the Bank proposes to revoke an approval (other than in pursuance of a request by the payment system to which it was granted to do so)— ( a ) it shall notify the payment system concerned that it intends to seek the consent of the Minister to the revocation and of the reasons for that revocation and that the system may, within 21 days after the date of the giving of the notification, make representations in writing to the Minister in relation to the proposed revocation, ( b ) the payment system may make such representations in writing to the Minister within the time aforesaid, and ( c ) the Minister shall, before deciding to give or withhold his or her consent, consider any representations duly made to him or her under this subsection in relation to the proposed revocation. F8 [ (2A) ( a ) In the performance of any function or duty by the Bank, or the exercise of any power by the Bank, required by or under the Treaty or the Statute, subsections (1)(b) and (2) shall not apply. ( b ) In this subsection ‘the Treaty’ and ‘the Statute’ have the same meanings, respectively, as are assigned to them for the purposes of this Act by subsection (2) (inserted by the Central Bank Act, 1998 ) of section 24 . ] (3) Where an approval of the rules of a payment system is revoked and the system is not a company which is being wound up— ( a ) the system and the members thereof shall continue to be subject to the duties and obligations imposed by or under this Part or section 18 of the Act of 1971 until all liabilities of the system and its members have been discharged to the satisfaction of the Bank, ( b ) the system shall, as soon as possible after the approval is revoked, notify the Bank and such other persons (if any) as the Bank indicates are to be notified of the measures being taken or proposed to be taken to discharge in full and without undue delay the liabilities of the system and the members thereof, ( c ) in the case where— (i) that payment system has notified the Bank in accordance with paragraph (b) and the Bank is of the opinion that the measures being taken or proposed to be taken for the purposes of that paragraph are not satisfactory, or (ii) that payment system has not so notified the Bank and the Bank is of the opinion that the system has failed to so notify as soon as possible after the approval is revoked, or (iii) the Bank is of the opinion that the payment system has failed to take all reasonable steps to notify persons that the Bank has indicated, under paragraph (b) , are to be notified, then, the Bank may give a direction in writing to that payment system or to any of its members for such period, not exceeding six months, as may be specified therein, prohibiting the payment system or the members thereof so directed from— (I) dealing with or disposing of any assets or specified assets of the payment system or of its members in any manner, or (II) engaging in any transaction or class of transaction or specified transaction, or (III) making payments, without the prior authorisation of the Bank, and the Bank may require that payment system or any of its members to prepare and submit to it for its approval within two months of the direction, a scheme for the orderly discharge in full of the liabilities concerned. (4) ( a ) Where the approval of the rules of a payment system is revoked and the system is a company which is being wound up, the liquidator of the company shall, in addition to the duties and obligations in respect of the winding up, be subject to the duties and obligations to which the payment system would be subject were it a payment system to which subsection (3) relates and that subsection shall, for the purpose of this subsection, be construed accordingly. ( b ) Notwithstanding paragraph (a) , the Bank may, where it revokes an approval and considers it appropriate in the circumstances, remove in writing the duty and obligation imposed on the liquidator concerned to comply with paragraph (b) of subsection (3) and may impose in writing on that liquidator such further or other duty and obligation which corresponds to that set out in the said paragraph (b) . ( c ) Nothing in this subsection shall be construed as affecting any duty or obligation under this Part of the members of the payment system concerned. (5) The Bank shall as soon as may be after the revocation of an approval of the rules of a payment system publish a notice of the revocation in such manner as it thinks fit. (6) ( a ) The system to which a direction was given under subsection (3) , or a liquidator to whom a direction was given under subsection (4) , may apply in a summary manner to the Court for, and the Court may grant, an order setting aside the direction. ( b ) The Bank may apply in a summary manner to the Court to have a direction by it under this section confirmed by the Court. (7) The Court when considering the matter may make such interim or interlocutory order as it considers appropriate. (8) 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, the whole or any part of proceedings under this section may be heard otherwise than in public. 14. — Any person who contravenes section 7 or section 8 (1) and a payment system or a member thereof who— ( a ) commits by act or omission a breach of a condition or requirement duly imposed and which relates to the approval by the Bank of the rules of the system, or ( b ) fails by act or omission to comply with a direction confirmed by the Court under section 12 or section 13 , shall be guilty of an offence and shall be liable— (i) on summary conviction, to a fine not exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both, or (ii) on conviction on indictment, to a fine not exceeding £50,000 or, at the discretion of the court, to imprisonment for a term not exceeding five years, or to both, and (iii) if the contravention, breach or failure in respect of which such person, payment system or member was convicted is continued after conviction, that person, system or member shall be guilty of an offence on every day on which the contravention, breach or failure continues after conviction in respect of the original contravention, breach or failure and for each such offence that person, system or member shall be liable on summary conviction to a fine not exceeding £100 or on conviction on indictment to a fine not exceeding £5,000. 15. — In approving the rules of a payment system or in imposing terms and conditions for the operation of a system, the Bank may, without prejudice to any other requirement it sees fit to impose in the interests of the proper and orderly regulation of the system, impose conditions in relation to all or any of the following: ( a ) the requirements for membership and rules of operation of the system; ( b ) the code of conduct to be followed by the members of the system; ( c ) the apportionment of costs as between the members themselves or between the members and the system; ( d ) the fees, contributions or any other financial requirement in relation to membership of a payment system whatsoever imposed or to be imposed on an existing member of the system or an applicant for membership of the system. 16. — Section 26 of the Act of 1971 is hereby amended by the substitution for subsection (7) (inserted by section 42 of the Act of 1989) of the following subsections: “(7) The Minister may, after consultation with the Bank and where he or she is of the opinion that the proper and orderly regulation of financial markets so requires, by order— ( a ) in the case of either or both subsections (2) and (3) of this section, apply those subsections or restrict their application to any class of persons, and ( b ) in the case of subsection (6) of this section, amend that subsection by the addition thereto or deletion therefrom, of any instrument specified in that subsection, and, in the case of each subsection, whether or not previously affected by virtue of this subsection. (8) In this section ‘holder of a licence’ shall be deemed to include a credit institution within the meaning of Regulation 2 of the European Communities (Licensing and Supervision of Credit Institutions) Regulations, 1992 (S.I. No. 395 of 1992). (9) Where the Minister is of the opinion, after consulting the Bank and such other Ministers (if any) as he considers it appropriate to consult with, that there are adequate supervisory and inspection provisions contained in any enactment relating to a financial institution or a class or type of institution to which the provisions of this Chapter would apply, then the Minister may by order specify the enactment concerned and, where necessary in the context of that enactment, the institution or class or type of institution to which the order relates and, accordingly, those provisions shall not apply to an institution to which the order relates. (10) The Minister may, after consulting the Bank and such other Ministers (if any) as he considers it appropriate to consult with, by order, revoke an order, under subsection (9).”. 17. — The Bank may exempt a payment system or a class of payment system from some or all of the requirements of this Part on such terms and conditions as the Bank may decide, where it is of the opinion that the application of this Part to that system or class of system is not necessary in the interest of the proper and orderly regulation of financial transactions in the State. 18. — F9 [ (1) The Bank may, subject to the approval of the Minister, prescribe the fee that a person who operates a payment system must pay to the Bank in relation to the operation of the system. Different fees may be prescribed for different classes of operators of payment systems. ] (2) Where the F9 [ Bank ] proposes to prescribe a fee under subsection (1) , F9 [ it ] — ( a ) shall notify the persons of the class to which the proposed fee relates of that proposed fee, and ( b ) shall not prescribe the fee until F9 [ it ] has considered any representations made to F9 [ it ] within such period, being not less than two months after the date the notification was sent to each person concerned. 19. — Where any credit institution instructs the F10 [ Bank ] to make a payment to the F10 [ Bank ] or to another credit institution that instruction may not be revoked on or after the debiting of the account of such credit institution. 20. — Notwithstanding anything to the contrary contained in any enactment relating to settlement or other accounts held at the Bank, all payment instructions and authorisations to and from the Bank shall be effective if made through a computerised system established by the Bank or in any other electronic form and not otherwise recorded within the Bank (without the need for an instrument in writing). 21. — The following section is hereby substituted for section 7 of the Act of 1942: “7.— (1) It shall be lawful for the Bank to do all or any of the following things, that is to say: ( a ) buy or sell coin or gold or silver bullion, or other precious metal, or any currency or currency units, however described; ( b ) receive deposits; ( c ) open accounts in other countries or act as agent, depository, or correspondent of any credit institution carrying on business in or outside the State; ( d ) with the consent of the Minister acquire, hold, or dispose of shares in a bank or other institution formed wholly or mainly by banks which are the principal currency authority in their respective countries; ( e ) re-discount any exchequer note or bill, local authority bill, bill of exchange or promissory note on such terms and conditions as the Bank sees fit; ( f ) make loans or advances to credit institutions on the security of such assets and subject to such terms and conditions as the Bank sees fit; ( g ) fix and publish from time to time the minimum rate or rates at which the Bank may re-discount any bill or debt instrument or otherwise make funds available to credit institutions; ( h ) buy, hold, or sell securities; ( i ) keep registers of securities generally; ( j ) operate or participate in any depository of securities or of other instruments; ( k ) keep the accounts for the clearing and settlement of securities or payment instruments; ( l ) become a member of, or a party to the establishment or operation of a payment system; ( m ) operate or participate in any system that provides a settlement service for transactions in securities or other instruments for its members; ( n ) enter into agreements with any depositories of securities or other instruments and to carry out any transactions under the terms of such agreements necessary for the settlement of transactions between members of such depositories and members of any depository operated by the Bank.”. 22. — (1) The Minister may make regulations providing for the regulation of cross-border credit transfers and, without prejudice to the generality of the foregoing, the regulations may provide, in respect of such credit transfers, for all or any of the following: ( a ) transparency; ( b ) periods of time within which establishments may be bound to make a payment; ( c ) an obligation to execute transfers in accordance with instructions in payment orders, including instructions as regards allocation of costs; ( d ) an obligation, in the event of non-execution of transfers, to refund an amount up to and including the full amount, interest and charges; ( e ) dispute resolution procedures. (2) In this section— “ cross-border credit transfer ” means a transaction carried out on the initiative of an originator via an institution or its branch in one Member State of the European Union, with a view to making available an amount of money to a beneficiary at an institution or its branch in another Member State; “ transparency ” means the making available to actual and prospective customers in writing, including where appropriate by electronic means, in a readily comprehensible form, information on conditions for cross-border credit transfers. PART III Power of the Bank to Form or Acquire a Company 23. — (1) Subject to subsection (4) , the Bank may promote and take part in the formation or establishment of one or more than one company. (2) The Bank may acquire, hold and dispose of shares or other interests in one or more than one company and become a member of a company. (3) The Bank may exercise total or partial control of the composition of the board of directors that controls or manages a company promoted, formed or established by it. (4) The exercise by the Bank of any power conferred by this section shall be subject to the consent of the Minister, given after consultation with any other Minister of the Government who, in the opinion of the Minister, having regard to the functions of that Minister of the Government, ought to be consulted. (5) The consent of the Minister shall be required for the drawing up of or amending of the Memorandum and Articles of Association of any company formed or acquired by the Bank. (6) The functions and powers of any subsidiary of the Bank shall be limited to those conferred on the Bank. (7) Subsection (6) shall not apply where the Bank becomes a member of, or is a party to the establishment or operation of a payment system. F11 [ PART IV Functions of Bank with Respect to Regulated Financial Service Providers CHAPTER 1 Introductory ] 24. —(1) In this Part— ‘affiliate’, in relation to an auditor, means a firm or body corporate specified by subsection (2) as being an affiliate of the auditor; ‘company’ has the same meaning as in section 2 (1) of the Companies Act 1963; F13 [ ‘financial holding company’ has the same meaning as it has in the European Union (Capital Requirements) Regulations 2014 ( S.I. No. 158 of 2014); ] ‘firm’ has the same meaning as in section 4 of the Partnership Act 1890; ‘guideline’ means a guideline issued under section 27A or, if such a guideline is amended, means the guideline as amended; F13 [ ‘mixed financial holding company’ has the same meaning as it has in the European Union (Capital Requirements) Regulations 2014; ] ‘public authority’ means a body (whether corporate or incorporate) established or constituted by or under an Act that performs one or more public functions; ‘relevant obligations’, in relation to a regulated financial service provider, means the service provider's obligations under— ( a ) all designated enactments and all designated statutory instruments that apply to it, and ( b ) all codes, guidelines and notices issued by the Bank that apply to it, and ( c ) all other enactments and statutory instruments with which it must comply; ‘work’, in relation to an auditor, includes all work of an accounting, financial or advisory nature that an auditor does for a financial service provider as well as work involved in auditing the financial service provider's accounts. (2) For the purposes of this Part, each of the following is an affiliate of an auditor in a financial year: ( a ) in the case of an auditor that is a firm— (i) any other firm that, at any time during the financial year, was under the same ownership and control as the auditor, (ii) any body corporate in which the auditor, any firm mentioned in subparagraph (i) or (iv) or any body corporate mentioned in subparagraph (iii) or (iv) was, at any time in the financial year, entitled to exercise or control the exercise of 20 per cent or more of the voting rights at a general meeting, (iii) any body corporate that was, at any time in the financial year, in the same group as a body corporate mentioned in subparagraph (ii) , (iv) any other firm, or body corporate, that because of the use of a common name or corporate identity or the sharing of common professional services could reasonably be considered to be associated with the auditor, ( b ) in the case of an auditor who is a natural person— (i) any partnership in which the auditor was, at any time in the financial year, a partner, (ii) any body corporate in which the auditor, any partnership mentioned in subparagraph (i) or any body corporate mentioned in subparagraph (iii) was, at any time in the financial year, entitled to exercise or control the exercise of 20 per cent or more of the voting rights at a general meeting, (iii) any body corporate that was, at any time in the financial year, in the same group as a body corporate mentioned in subparagraph (ii) . (3) For the purposes of this Part, a director of a regulated financial service provider that is a body corporate is taken to be concerned in the management of the financial service provider even though the director is not involved in its day to day management. ] F13 [ (4) In this Part— ( a ) a reference to a financial service provider shall include a reference to a financial holding company or a mixed financial holding company, ( b ) a reference to a regulated financial service provider shall include a reference to a financial holding company or a mixed financial holding company, and ( c ) a reference to a person concerned in the management of a financial service provider shall include a reference to a person concerned in the management of a financial holding company or a mixed financial holding company. ] 25. —(1) The Bank may, whenever it considers appropriate, serve on a regulated financial service provider a notice requiring the service provider to comply with this section. (2) The Bank may also serve such a notice at the request of another public authority only if it is of the opinion that it would be in the public interest to do so. (3) A notice must specify a reasonable period within which the requirement is to be complied with and, if the notice is served at the request of another public authority, it must specify the name and address of that authority. (4) A regulated financial service provider on whom a notice is served shall provide the Bank with a compliance statement within the required period. (5) If the compliance statement is provided at the request of another public authority, the financial service provider concerned shall, also within the required period, provide the public authority with a copy of the statement. (6) A compliance statement must, in accordance with any relevant guideline, specify whether the regulated financial service provider concerned has, during the compliance period specified in the notice, complied with its relevant obligations, or with such of them as are specified in the notice. (7) A compliance statement must also comply with the guidelines (if any) from time to time issued under section 27A (1) . (7A) In the case of a regulated financial service provider that is a company to which section 205E of the Companies Act 1990 applies, the Bank may, instead of serving on the financial service provider a notice under this section, rely on a compliance statement prepared under that section if it is satisfied that the statement contains the information that would be required to be included in a compliance statement under this section. (8) In this section— ‘notice’ means a notice in writing served under this section; ‘required period’, in relation to a notice served on a regulated financial service provider, means the period specified in the notice within which the service provider must comply with the notice or, if the Bank extends that period, that extended period. ] 26. —(1) If a notice served under section 25 so requires, the financial service provider concerned shall request that service provider's auditor to prepare a report about the relevant compliance statement. (2) Within such period as is specified in the notice, the auditor shall prepare a report about the relevant compliance statement and deliver the report to the financial service provider concerned. (3) Such a report must— ( a ) state whether the relevant compliance statement is, in the auditor's opinion, fair and reasonable in the light of the information obtained by the auditor, or by an affiliate of the auditor, in the course of undertaking work for the service provider, and ( b ) if the auditor is of the opinion that the compliance statement is not fair and reasonable, specify the reasons why, in the auditor's opinion, that statement is not fair and reasonable. (4) As soon as practicable after receiving a report prepared in accordance with this section, the financial service provider concerned shall— ( a ) attach the report to the compliance statement, or ( b ) if that statement has already been delivered to the Bank, deliver the report to the Bank, and if another public authority requested the compliance statement, also deliver a copy of the report to the public authority. (5) If a report prepared in accordance with this section relates to a financial service provider that is a company, the auditor shall include a copy of the report in the auditor's report on the company's accounts that are required to be laid before the company in general meeting. ] 27. —(1) A regulated financial service provider who fails to comply with a requirement of section 25 or 26 commits an offence and is— ( a ) if tried summarily, liable on conviction to a fine not exceeding €2,000, or ( b ) if tried on indictment, liable on conviction to a fine not exceeding €75,000. (2) A regulated financial service provider who, having been convicted of an offence of failing to comply with a requirement of section 25 or 26 , continues to fail to comply with the requirement commits a further offence on each day or part of a day during which the failure continues after that conviction and— ( a ) if tried summarily, is liable on conviction to a fine not exceeding €200 for each such day or part of a day, or ( b ) if tried on indictment, is liable on conviction to a fine not exceeding €7,500 for each such day or part of a day. (3) If a regulated financial service provider that is a body corporate commits an offence under subsection (1) or (2) , each person who, at the time when the offence is found to have been committed, was concerned in the management of the body commits a separate offence, unless the person establishes that— ( a ) the body committed the offence without the person's knowledge, or ( b ) although the person did have that knowledge, the person took all reasonably practicable steps to prevent the commission of the offence. (4) A person may be charged with having committed an offence under subsection (3) even if the financial service provider concerned is not charged with having committed an offence under subsection (1) in relation to the same matter. (5) A person who is convicted of an offence under subsection (3) is liable to a fine not exceeding that prescribed by subsection (1) or (2) for a regulated financial service provider. ] F17 [ (6) ( a ) Subsection (1) does not apply if the regulated financial service provider concerned has a reasonable excuse. ( b ) It is a reasonable excuse for the purposes of paragraph (a) for a regulated financial service provider to fail to comply with a requirement under section 25 or 26 that such compliance might tend to incriminate the regulated financial service provider. ( c ) Paragraph (b) does not limit what is a reasonable excuse for the purposes of paragraph (a) . ] 27A. —(1) The Bank may from time to time issue guidelines with which a compliance statement must comply. (2) The Bank may also from time to time issue guidelines specifying the manner in which the persons concerned in the management of regulated financial service providers, or of regulated financial service providers of a specified class, are required to exercise control over those service providers so as to ensure that those service providers comply with their obligations under the designated enactments and designated statutory instruments that apply to them. (3) Whenever the Bank issues guidelines under this section, or amends or revokes those guidelines, the Bank must publish in Iris Oifigiúil a notice— ( a ) stating that the guidelines have been issued, or have been amended or revoked, and ( b ) specifying a place or places where copies of the guidelines, or the amendment or revocation, may be obtained. (4) The Bank shall publish guidelines issued under this section, or any amendment or revocation of those guidelines, in a publication chosen by the Bank. (5) Guidelines issued under this section take effect on the date on which the notice of their issue is published in Iris Oifigiúil or on such later date as is specified in the publication. (6) The Bank may amend or revoke guidelines issued under this section. (7) An amendment or revocation of a guideline issued under this section takes effect on the date on which notice of the amendment or revocation is published in Iris Oifigiúil or on such later date as is specified in the notice. (8) All courts and tribunals are required to take judicial notice of guidelines in force under this section. ] 27B. —(1) This section applies to an auditor who is required by or in accordance with a prescribed enactment to report a matter to the Bank. (2) Within 1 month after the date of the auditor's report on the financial service provider's accounts, or within such extended period as the Bank allows, the auditor of the service provider shall deliver a written report to the Bank— ( a ) stating whether or not circumstances have arisen that require the auditor to report a matter to the Bank under a prescribed enactment and, if such circumstances have arisen, specify those circumstances, and ( b ) where the service provider has, during that financial year, been required to provide the Bank with a compliance statement stating whether or not the requirement has been complied with. (3) A report under this section must be in a form publicly notified by the Bank. (4) The following are prescribed enactments for the purpose of this section: ( a ) section 35 of the Insurance Act 1989; ( b ) section 47 of the Central Bank Act 1989; ( c ) section 89 of the Building Societies Act 1989; ( d ) section 38 of the Trustee Savings Banks Act 1989; ( e ) section 258 of the Companies Act 1990; ( f ) section 15 of the Unit Trusts Act 1990; ( g ) section 16 of the Investment Limited Partnerships Act 1994; ( h ) section 33 of the Investment Intermediaries Act 1995; ( i ) section 34 of the Stock Exchange Act 1995; ( j ) section 122 of the Credit Union Act 1997; F20 [ ( k ) Regulation 85 of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003; ] F20 [ ( l ) Regulation 52 of the European Union (Capital Requirements) Regulations 2014; ] F20 [ ( m ) Regulation 78 of the European Union (Insurance and Reinsurance) Regulations 2015; ] F21 [ ( n ) any other provision of an Act or regulations declared under subsection (5) to be a prescribed enactment for the purpose of this section. ] (5) The Bank may, by notice published in Iris Oifigiúil, declare a provision of an Act or regulations to be a prescribed enactment for the purpose of this section. ] 27BA. — (1) Where the Bank considers it necessary owing to the nature, scale or complexity of the activities of a regulated financial service provider, it may, by notice in writing to the auditor of the regulated financial service provider, require the auditor to conduct an examination for the purpose of providing to the Bank a statement as to the extent to which the regulated financial service provider has complied with obligations imposed by or under such provisions of financial services legislation as are specified in the notice. (2) The notice— ( a ) shall be given not less than 3 months before the date on which the auditor’s report on the regulated financial service provider’s accounts is due to be submitted to the Bank, and ( b ) shall specify the standards in accordance with which the examination is to be conducted. (3) The auditor shall conduct an examination in accordance with the notice and during the examination shall undertake such testing procedures and obtain such information as the auditor thinks appropriate. (4) The auditor shall, not more than 2 months after the date on which the auditor’s report on the regulated financial service provider’s accounts is due to be submitted to the Bank, provide to the Bank a statement outlining the findings of the examination (including, in particular, the outcome of the testing procedures undertaken, and the information obtained, by the auditor during the examination). (5) If the auditor is not satisfied that the regulated financial service provider has complied with an obligation imposed by or under the provisions of financial services legislation specified in the notice, the auditor shall include in the statement the reasons why the auditor is not so satisfied. (6) The Bank may make regulations prescribing the obligations imposed by or under provisions of financial services legislation any or all of which may be specified in a notice under subsection (1) . (7) The Bank may prescribe an obligation imposed by or under a provision of financial services legislation in regulations under subsection (6) if and only if the provision concerns— ( a ) administrative or accounting procedures of regulated financial service providers, ( b ) internal control mechanisms of, or risk management by, regulated financial service providers, or ( c ) the organisational structure or governance of regulated financial service providers. (8) Before making regulations under this section the Bank shall consult the Minister and the Minister for Jobs, Enterprise and Innovation. (9) In specifying under subsection (2)(b) the standards in accordance with which an examination is to be conducted, the Bank shall have regard to internationally recognised standards for assurance and auditing. ] 27C. —(1) If the auditor of a regulated financial service provider provides the financial service provider, or those concerned in its management, with a report on a matter that has come to the auditor's notice while auditing the accounts of the financial service provider or carrying out any other work for the financial service provider of a kind specified by the Bank, the auditor shall provide the Bank with a copy of the report. The copy must be provided at the same time as, or as soon as practicable after, the original is provided to the financial service provider or those concerned in its management. (2) If— ( a ) an auditor of a regulated financial service provider invites the financial service provider, or the persons concerned in its management, to comment on a draft of a report referred to in subsection (1) , and ( b ) the financial service provider or those persons comment on the draft in response to the invitation, the obligation of the auditor under that subsection applies only to the final version of the report. (3) If, in relation to the financial year of a regulated financial service provider, there has been no reason for the auditor of the service provider to provide such a report, the auditor shall nevertheless notify the Bank in writing that this is the case. ] 27D. —Whenever an auditor of a regulated financial service provider that is a company provides the Director of Corporate Enforcement with a report or other document in accordance with a requirement imposed by the Companies Acts or any other enactment, the auditor shall also provide the Bank with a copy of that report or document. The copy must be provided at the same time as, or as soon as practicable after, the original is provided to the Director of Corporate Enforcement. ] 27E. —(1) The Bank may, by notice in writing, request an auditor of a regulated financial service provider, or an affiliate of the auditor, to provide the Bank with a report on all or any of the following: ( a ) the service provider's accounting or other records; ( b ) the systems (if any) that the service provider has in place to ensure that the service provider acts prudently in the interests of its members (if a company or firm) and the interests of those to whom the service provider provides financial services; ( c ) any other matter in respect of which the Bank requires information about the service provider, or the service provider's activities, to enable the Bank to perform a function imposed on it by or under an Act. (2) The auditor or affiliate shall comply with such a request within such period as is specified in the request, or within such extended period as the Bank may allow. (3) If the Bank so directs, the auditor or affiliate shall not, without the consent of the Bank, disclose to the financial service provider concerned, or any person concerned in the management of, or employed by, that service provider— ( a ) the fact that the auditor or affiliate has received a request under subsection (1), or ( b ) any information that might lead that service provider, or any such person, to suspect that the auditor or affiliate has received such a request. ] 27F .—(1) The Bank may, by notice in writing, require an auditor of a regulated financial service provider, or an affiliate of the auditor, to provide the Bank with a copy of any record or information provided or obtained by the auditor or affiliate in connection with an audit of the financial service provider's accounts that is in the possession of the auditor or affiliate. (2) The auditor or affiliate shall comply with such a request within such period as is specified in the request, or within such extended period as the Bank may allow. (3) If the Bank so directs, the auditor or affiliate shall not, without the consent of the Bank, disclose to the financial service provider concerned, or any person concerned in the management of, or employed by, that service provider— ( a ) the fact that the auditor or affiliate has received a request under subsection (1) , or ( b ) any information that might lead that service provider, or any such person, to suspect that the auditor or affiliate has received such a request. ] 27G. —(1) An auditor of a regulated financial service provider who, without reasonable excuse, fails to comply with section 27B(2) , F28 [ 27BA(4) or (5) , ] 27C(1) , 27D , 27E(2) or 27F(2) , or contravenes section 27E(3) or 27F(3) , commits an offence and— ( a ) if tried summarily, is liable on conviction to a fine not exceeding €2,000, or ( b ) if tried on indictment, is liable on conviction to a fine not exceeding €75,000. (2) An affiliate of an auditor of a regulated financial service provider who, without reasonable excuse, fails to comply with section 27E(2) or 27F(2) , or contravenes section 27E(3) or 27F(3) , commits an offence and— ( a ) if tried summarily, is liable on conviction to a fine not exceeding €2,000, or ( b ) if tried on indictment, is liable on conviction to a fine not exceeding €75,000. (3) An auditor who, having been convicted of an offence of failing to comply with a provision of section 27B , F28 [ 27BA , ] 27C , 27D , 27E or 27F , continues to fail to comply with the provision commits a further offence on each day or part of a day during which the failure continues after that conviction and— ( a ) if tried summarily, is liable on conviction to a fine not exceeding €200 for each such day or part of a day, or ( b ) if tried on indictment, is liable on conviction to a fine not exceeding €7,500 for each such day or part of a day. (4) An affiliate of an auditor who, having been convicted of an offence of failing to comply with a provision of section 27E or 27F , continues to fail to comply with the provision commits a further offence on each day or part of a day during which the failure continues after that conviction and— ( a ) if tried summarily, is liable on conviction to a fine not exceeding €200 for each such day or part of a day, or ( b ) if tried on indictment, is liable on conviction to a fine not exceeding €7,500 for each such day or part of a day. ] 27H. —An auditor or an affiliate of a regulated financial service provider does not— ( a ) contravene any duty of confidentiality owed to the service provider or to its creditors or clients or, if the service provider is an incorporated or unincorporated body, to its members, or ( b ) incur any tortious liability, only because the auditor or affiliate complies with a duty imposed on the auditor or affiliate by this Part. ] 27I. —Any person who, in a return, statement or other document required by or under a provision of this Part or a regulation made for the purposes of this Part, provides information that the person knows, or ought reasonably to know, is false or misleading in a material respect commits an offence and is— ( a ) if tried summarily, liable on conviction to a fine not exceeding €2,000 and to imprisonment for a term not exceeding 3 months, or both, or ( b ) if tried on indictment, liable on conviction to a fine not exceeding €75,000 or to imprisonment for a term not exceeding 12 months, or both. ] 27J. —Proceedings for an offence against a provision of this Part that is to be tried summarily may be brought and prosecuted only by the Bank or the Director of Public Prosecutions. ] 27K. — F33 [ … ] ] F34 [ PART V Supervision of Regulated Businesses CHAPTER 1 Introductory provisions ] F35 [ 28. — F36 [ (1) ] In this Part— F37 [ “Act of 1995” means the Consumer Credit Act 1995; ] “Appeals Tribunal” means the Irish Financial Services Appeals Tribunal established under Part VIIA of the Central Bank Act 1942 ; F38 [ “authorisation” means an authorisation of a person to carry on a regulated business and, if an authorisation is amended in accordance with section 34 , means the authorisation as amended; ] “bureau de change business” means a business that comprises or includes providing members of the public with a service that involves buying or selling foreign currency, other than a service that is provided— F39 [ ( a ) by a person or body that is required to be licensed, registered or otherwise authorised by the Bank under a designated enactment (other than under this Part) or designated statutory instrument, or ] ( b ) F40 [ … ] ( c ) by a person or body on an ancillary basis in the ordinary course of providing services to customers of the person or body; F41 [ “consumer” means— ( a ) an individual acting otherwise than in the course of business, or ( b ) a micro enterprise within the meaning given by Commission Recommendation 2003/361/EC of 6 May 2003 3 concerning the definition of micro, small and medium sized enterprises; ] F37 [ “consumer-hire agreement” means an agreement of more than three months duration for the bailment of goods to a hirer under which the property in the goods remains with the owner; ] F46 [ “credit” means— ( a ) a deferred payment, ( b ) a cash loan (whether or not provided on the security of a mortgage or charge over an estate or interest in land), or ( c ) other similar financial accommodation, but does not include— (i) credit of a class specified in section 3(2) of the Act of 1995, (ii) credit granted or made available under an agreement of a class specified in section 3(2) of the Act of 1995, (iii) credit arising under a transaction of a class specified in section 3(2) of the Act of 1995, (iv) a payment of a class specified in section 3(2) of the Act of 1995, or (v) bailment of goods to a hirer under an agreement of less than 3 months’ duration under which the property in the goods remains with the owner; ] F47 [ “credit agreement” means an agreement whereby a creditor grants, or promises to grant, credit to a relevant borrower; ] F42 [ “credit servicing” means— ( a ) in relation to a credit agreement, subject to subsection (2)(a) — (i) holding the legal title to the rights of the creditor under the agreement, (ii) managing or administering the agreement, including— (I) notifying the relevant borrower of changes in interest rates or in payments due under the agreement or other matters of which the agreement requires the relevant borrower to be notified, (II) taking any necessary steps for the purposes of collecting or recovering payments due under the agreement from the relevant borrower, or (III) managing or administering any of the following: (A) repayments under the agreement; (B) any charges imposed on the relevant borrower under the agreement; (C) any errors made in relation to the agreement; (D) any complaints made by the relevant borrower; (E) information or records relating to the relevant borrower in respect of the agreement; (F) the process by which a relevant borrower’s financial difficulties are addressed; (G) any alternative arrangements for repayment or other restructuring; (H) assessment of the relevant borrower’s financial circumstances and ability to repay under the agreement; (I) determination of the overall strategy for the management and administration of a portfolio of such agreements; (J) maintenance of control over key decisions relating to such a portfolio, or (iii) communicating with the relevant borrower in respect of any of the matters referred to in subparagraph (ii) , and ( b ) in relation to a hire-purchase agreement or a consumer-hire agreement, subject to subsection (2)(b) — (i) holding the legal title to the rights of the owner under the agreement, (ii) managing or administering the agreement, including— (I) notifying the hirer of changes in payments due under the agreement or other matters of which the agreement requires the hirer to be notified, (II) taking any necessary steps for the purposes of collecting or recovering payments due under the agreement from the hirer, or (III) managing or administering any of the following: (A) repayments under the agreement; (B) any charges imposed on the hirer under the agreement; (C) any errors made in relation to the agreement; (D) any complaints made by the hirer; (E) information or records relating to the hirer in respect of the agreement; (F) the process by which a hirer’s financial difficulties are addressed; (G) any alternative arrangements for repayment or other restructuring; (H) assessment of the hirer’s financial circumstances and ability to repay under the agreement; (I) determination of the overall strategy for the management and administration of a portfolio of hire-purchase agreements, consumer-hire agreements or a mix