Markets in Financial Instruments and Miscellaneous Provisions Act 2007

• Permanent Page URL

Amendment of Investor Compensation Act 1998.

22.— The Investor Compensation Act 1998 is amended—

(a) in the definition of “ authorised investment firm ” in section 2(1), by substituting the following for paragraph (b):

“(b) an authorised investment firm as defined in the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60 of 2007 ), or”,

(b) in section 2(1), by deleting the definition of “ authorised member firm ”;

(c) in section 2(1), by substituting the following for the definition of “ client ”:

“ ‘ client ’ means a person—

(a) to whom an investment firm provides investment business services, or

(b) who has entrusted money or investment instruments to an investment firm in connection with the provision of investment business services by the firm;”;

(d) in section 2(1), by substituting the following for the definition of “ insurance intermediary ”:

“ ‘ insurance intermediary ’ means a registered insurance intermediary within the meaning of the European Communities (Insurance Mediation) Regulations 2005, but does not include a solicitor who—

(a) has a valid practising certificate issued under the Solicitors Acts 1954 to 1994, and

(b) carries on the relevant activities only incidentally to the legal services he or she provides;”;

(e) in section 2(1), by substituting the following for the definition of “ investment business services ”:

“ ‘ investment business services ’ has the meaning given by the Act of 1995, and includes—

(a) investment services as defined in the European Communities (Markets in Financial Instruments) Regulations 2007, and

(b) the activities of an insurance intermediary;”;

(f) in the definition of “ investment firm ” in section 2(1), by substituting the following paragraphs for paragraph (b):

“(b) an authorised investment firm as defined in the European Communities (Markets in Financial Instruments) Regulations 2007,

(ba) a person who was formerly an authorised investment firm and whose authorisation has been revoked,”;

(g) in section 2(1), by substituting the following definition for the definition of “ investment instruments ”:

“ ‘ investment instruments ’ has the meaning given by the Act of 1995, and includes instruments of the kind listed in Part 3 of Schedule 1 of the European Communities (Markets in Financial Instruments) Regulations 2007;”;

(h) by adding the following definition after the definition of “ joint investment business ”:

“ ‘liquidation proceeding’ includes—

(a) a compulsory or court liquidation under the Companies Acts,

(b) a creditor’s voluntary liquidation under the Companies Acts,

(c) any receivership or analogous process,

(d) bankruptcy proceedings under the Bankruptcy Act 1988 , and

(e) any scheme of arrangement in consequence of the appointment of an examiner;”;

(i) in section 2(1), by deleting the definition of “ member firm ”;

(j) by inserting the following definition after the definition of “ local authority ”:

“ ‘ Markets in Financial Instruments Directive ’ means Directive 2004/39/EC of 21 April 2004;”;

(k) in section 2(1), by substituting the following for the definition of “ professional investor ”:

“ ‘ professional client ’ has the meaning given by the European Communities (Markets in Financial Instruments) Regulations 2007;”;

(l) in section 2(1), by substituting the following for the definition of “ ruling ”:

“ ‘ ruling ’ means a Court decision that—

(a) is made in relation to an investment firm for reasons directly related to the financial circumstances of the firm, and

(b) precludes clients of the firm from pursuing claims against the firm for—

(i) the return of money owed, or belonging to, the client, and held on behalf of the client by the firm in connection with the provision of investment business services, and

(ii) the return of investment instruments belonging to the client and held, administered or managed by the firm on behalf of the client in connection with the firm’s provision to the client of those services,

but does not include a Court decision made under the Companies Acts appointing an examiner or provisional liquidator;”;

(m) in section 2, by adding the following subsection after subsection (1):

“(1A) For the purpose of paragraph (b) of the definition of ‘ ruling’ in subsection (1), an investment firm is taken, in the circumstances described in section 52(10) of the Act of 1995, to hold client money and investment instruments.”;

(n) in section 2(5)(b), by substituting “the administration of” for “administering”;

(o) in section 9(4), by substituting the following paragraph for paragraph (b):

“(b) in relation to investment firms, an authorised officer, or an inspector, appointed under the European Communities (Markets in Financial Instruments) Regulations 2007;”;

(p) in section 20, by substituting the following for subsection (4):

“(4) The Company is not responsible for expenses that an administrator of an investment firm incurs in respect of functions that the administrator performs contemporaneously with functions that the administrator performs as liquidator, receiver or trustee in bankruptcy of the firm, even though those functions may also relate to the performance of functions as administrator of the firm.”;

(q) in section 21(3), by substituting the following for paragraph (b):

“(b) despite paragraph (a), the Company may, when specifying rates, or amounts of contributions, or bases, for the calculation of contributions for investment firms, take account of any money, or investment instruments, entrusted to those firms (whether before or after the commencement of this Act) in connection with the provision by those firms of investment business services to the client.”;

(r) in section 24, by substituting “and by clients” for “and by investors”;

(s) in section 25(6)(d), by substituting “compensation for eligible investors” for “compensation for investors”;

(t) in section 28 by substituting the following for subsection (7):

“(7) The supervisory authority, in accordance with the European Communities (Markets in Financial Instruments) Regulations 2007, may revoke the authorisation of an investment firm that under those Regulations is an authorised investment firm, if the firm does not comply with a direction given under section 27.”;

(u) in section 28(8), by substituting “the provision of investment business services and shall” for “the provision of investment services listed in the Annex to the Investment Services Directive and shall”;

(v) In section 28, by adding the following after subsection (9):

“(9A) The supervisory authority, in accordance with the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2003, may revoke the authorisation of an investment firm that, under those Regulations, is a management company authorised to undertake the services referred to in Regulation 16(3) of those Regulations, if the firm does not comply with a direction given to it under section 27.”;

(w) in section 28(10), by substituting “shall not give less than” for “shall not give less that”;

(x) in section 29(5), by substituting “to which section 28(9) applies” for “to which section 28(6)(d) applies”;

(y) in section 30(1) by substituting the following for the definition of “ compensatable loss ”:

“ ‘ compensatable loss ’ means 90 per cent of the amount of an eligible investor’s net loss or €20,000, whichever is the lesser;”;

(z) in section 30(1) by substituting the following for paragraph (b) of the definition of “ net loss ”:

“(b) investment instruments belonging to a client of the investment firm, and held, administered or managed by that firm for the client, in connection with the provision of investment business services by that firm to the client, the value of those instruments being determined, so far as possible, by reference to their market value,”.