S.I. No. 329/2005 - Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2005

I, Dr Con Power, Chairperson of the Financial Services Ombudsman Council, in exercise of the powers conferred on the Council by Sections 57BE and 57 BF of the Central Bank Act 1942 (as inserted by the Central Bank and Financial Services Authority of Ireland Act 2004 ) and delegated by the Council to me, with the agreement of the members of the Council, and with the consent of the Minister for Finance, hereby make the following regulations:

1.   These Regulations may be cited as the Central Bank Act 1942 (Financial Services Ombudsman Council) Levies and Fees Regulations 2005

2    .   In these Regulations —

“Bureau” means the Financial Services Ombudsman's Bureau;

“Chairperson” means the Chairperson for the time being of the Council;

“Council” means the Financial Services Ombudsman Council;

“due date” means the date specified as the due date in the levy notice.

“levy notice” means notice sent by the Bureau in accordance with Regulation 4;

“levy period” means the period prescribed in Regulation 3(b) and in the Schedule in respect of which regulated entities are obliged to pay the required levy contributions;

“Ombudsman” means the Financial Services Ombudsman for the time being;

“regulated entity” means a regulated financial service provider as defined in section 2 of the act and in S. I. no 191 of 2005 (including financial service providers whose business is subject to regulation by an authority that performs functions in an EEA country that are comparable to the functions performed by The Irish Financial Services Regulatory Authority under a designated enactment or designated statutory instrument).

“required levy contribution” means the contribution in Regulation 3(a).

“Schedule” means the Schedule to these regulations.

3(a)    Each regulated entity shall pay to the Ombudsman a contribution the amount of which is specified in, or calculated in accordance with, that part of the Schedule apposite to the applicable category or categories for that regulated entity.

3(b)    The required levy contribution shall be in respect of the levy period as specified in the Schedule, and shall be payable not later than the date set out in a levy notice.

4(a)    The Ombudsman may transmit, or may arrange the transmission of, a levy notice in writing to a regulated entity indicating the required levy contribution assessed by the Ombudsman to be payable by that regulated entity for the levy period.

(b) The Ombudsman may require a regulated entity in writing to make an assessment, on the basis of the information in the possession of the regulated entity, of the amount of the required levy contribution to be paid by that regulated entity for the levy period, and to make a return to the Ombudsman of such assessment. The Ombudsman may indicate what information in respect of what periods any required assessment may be based upon. Where a regulated entity is required to make an assessment and return under this paragraph, the assessment and return must be made within such period, not less than 7 working days, as the Ombudsman may require.

5. The required levy contributions shall be paid by direct bank transfer or equivalent instantaneous transfer of funds to the bank account specified by the Ombudsman, or in such other manner as the Ombudsman may indicate.

6. (a) A regulated entity who receives a levy notice under paragraph (a) of Regulation 4, may appeal to the Ombudsman, no later than 21 days following the date of a levy notice, to change the amount of the levy assessed for that regulated entity where it considers that the amount assessed is incorrect.

Any such appeals must be in writing and shall set out the grounds of the appeal in detail and must be accompanied by the amount of required levy contribution that is not in dispute. Where relevant the appeal should include any supporting documentation or representations.

(b) The Ombudsman, after considering any such appeal, shall advise the appellant in writing of his decision and the reason therefor and, where appropriate, any amount of required levy contribution not already paid shall be payable by the regulated entity to the Ombudsman within 7 working days after the notification of the decision to the appellant.

7. Where an amount of required levy contribution becomes payable under these Regulations and is not paid by the due date, simple interest on the amount shall be paid by the regulated entity liable to pay the required levy contribution and such interest shall be calculated from the date on which the amount became payable at the rate for the time being fixed by the Minister for Enterprise, Trade and Employment under Section 10 of the Prompt Payment of Accounts Act, 1997 for each day or part of a day during which the amount remains unpaid.

8. Every sum payable by a regulated entity under these Regulations, including interest, for or on account of the Ombudsman, shall be recoverable by the Council from that person as a simple contract debt in a court of competent jurisdiction.

9. (a) Each regulated entity shall, and shall in accordance with a direction (if any) as may be given by the Ombudsman, keep full and true records of all transactions which affect their liability under these Regulations and any related returns made.

(b) A record kept by a person pursuant to paragraph (a) and, in the case of any such record that has been given by the person to another person, any copy thereof that is in the power or control of the first-mentioned person shall be retained by that person for a period of six years from the date of the last transaction to which the record relates:

Provided that this Regulation shall not apply to records of a company that have been disposed of in accordance with section 305 (1) of the Companies Act, 1963 .

(c)No person shall, in purported compliance with a provision of these Regulations provide an answer or explanation, make a statement or produce or deliver any return, certificate, balance sheet or other document which is false in a material particular.

(d)A regulated entity that —

(i) fails to comply with any requirement under these Regulations to make an assessment;

(ii) fails to maintain records in accordance with these Regulations;

(iii) in breach of paragraph (c) of Regulation 9 provides any answer or explanation, or makes a statement or produces or delivers any return certificate, balance sheet or other document that is false; or

(iv) otherwise fails to comply with a provision of these Regulations thereby failing to pay, or preventing the collection of, any or all of the required levy contribution or thereby preventing a full and proper assessment of their liability under these Regulations,

may be assessed by the Ombudsman under Category [D] in the Schedule and the Ombudsman may send a levy notice to such a regulated entity indicating that basis of assessment.

(e)  In the event of a regulated entity being assessed under paragraph (d) of this Regulation and Category [D] of the Schedule —

(i) any monies already paid by the regulated entity in purported compliance with any provision of these Regulations shall be credited to the regulated entity;

(ii) the due date in respect of the required levy contribution under Category [D] shall be determined in accordance with Regulation 3.

and

(iii) the regulated entity may appeal to the Ombudsman under Regulation 6.

10. A notice authorised by these regulations to be served on a regulated entity may be served —

a.   if the person is an individual —

(i) by delivering it to that person, or

(ii) by sending it by post addressed to that person at the person's usual or last known place of residence or business, or

(iii) by leaving it for that person at that place,

b.   if the person is a body corporate or an unincorporated body of persons by sending it to the body by post to, or addressing it to and leaving it at, in the case of a company, its registered office (within the meaning of the Companies Act, 1963 ) and, in any other case, its principal place of business.

c.   in all cases, by facsimile by transmitting it to that person's last known facsimile number, or by electronic means to that person's last known e-mail address, evidenced by a valid sent receipt.

SCHEDULE

Category A

Members of the Credit Institutions Ombudsman of Ireland Ltd.

The members shall pay on account, in respect of their combined liability for the nine month period ended 31 December 2005, the sum of €500,000.

Category B

Members of the Insurance Ombudsman of Ireland Ltd.

The members shall pay on account, in respect of their combined liability for the nine month period ended 31 December 2005, the sum of €900,000.

Category C

All other regulated entities.

Amounts to be specified by 30 June 2005.

Category D

Default assessments

Each regulated entity falling within Regulation 9(d) shall pay a flat rate levy contribution of €3,600.

Explanatory Note

(This note is not part of the Instrument and does not purport to be a legal interpretation)

These regulations made by the Chairperson of the Financial Services Ombudsman Council in accordance with sections 57 BE and 57BF of the Central Bank Act 1942 (as amended) provide for an interim contribution to the funding of the Financial Services Ombudsman's Bureau from the members of the subsumed voluntary ombudsman schemes. The Regulations also provide for the collection and recovery of the levies as well as providing for certain obligations as to self-assessment and record keeping by regulated financial service providers.

Further regulations covering all regulated financial services providers will issue on or before 30 June 2005.