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Amendment of Principal Act - insertion of sections 957A to 957I
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45. Part 15 of the Principal Act is amended, in Chapter 3, by the insertion of the following sections before Chapter 4 of that Part:
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“Definitions (sections 957A to 957I)
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957AA. In this section and sections 957B to 957I—
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‘court’ means the High Court;
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‘monetary sanction’, in relation to a relevant director, means the monetary sanction referred to in section 957C(2)(c);
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‘public notice of relevant sanction imposed’, in relation to a relevant director, means the publication in accordance with section 957F(1) of the relevant director’s particulars referred to in that section together with the other related particulars referred to in that section;
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‘relevant contravention’ has the meaning assigned to it by section 900;
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‘relevant decision’, in relation to a relevant director, means—
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(a) a decision under section 957B(2) that the director has engaged in conduct giving rise (whether in whole or in part) to a relevant contravention,
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(b) if, in consequence of a decision referred to in paragraph (a), the Director decides under section 957B(2) to impose a relevant sanction on the relevant director, the decision to impose that sanction, or
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(c) both such decisions;
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‘relevant director’ has the meaning assigned to it by section 900;
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‘relevant sanction’, in relation to a relevant director, means a sanction referred to in section 957C(2);
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‘section 957E agreement’ shall be read in accordance with section 957E(1);
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‘Supervisory Authority’ has the meaning assigned to it by section 900.
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Provisions applicable where Director receives particulars, etc., from Supervisory Authority concerning relevant contravention and relevant director
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957B. (1) This section applies where—
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(a) the Director has received from the Supervisory Authority particulars referred to in section 936A(2) and (where applicable) information and documents and assistance referred to in section 936A(3), and
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(b) in consequence thereof, the Director has investigated under Part 13 a relevant director in order to find whether or not the relevant director has engaged in conduct giving rise (whether in whole or in part) to a relevant contravention.
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(2) Subject to section 957I(3) and (4), where the Director finds that a relevant director has engaged in conduct giving rise (whether in whole or in part) to the relevant contravention, the Director may impose such relevant sanction on the relevant director as the Director considers appropriate after having regard to the circumstances referred to in section 957D(2).
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(3) Subject to subsection (4), the relevant director the subject of a relevant decision may appeal to the court against the decision.
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(4) An appeal under subsection (3) shall be brought within 3 months after the date on which the relevant director was notified of the relevant decision by the Director.
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(5) A finding or relevant decision of the Director under this section is not a bar to any civil or criminal proceedings against the relevant director who is the subject of the finding or relevant decision.
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(6) Subject to subsection (7), the Director shall, as soon as is practicable after imposing under this section a relevant sanction on a relevant director, give particulars of the relevant director and of the sanction imposed to the Supervisory Authority.
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(7) The Director shall immediately communicate to the Supervisory Authority particulars of any direction given by the Director under section 957C(2)(b).
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Sanctions which Director may impose on relevant director for certain conduct
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957C. (1) This section applies to a relevant director the subject of a decision under section 957B(2) that the director has engaged in conduct giving rise (whether in whole or in part) to a relevant contravention.
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(2) Subject to section 957D, the Director may impose on the relevant director one or more of the following sanctions in relation to the relevant contravention:
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(a) a direction to the relevant director that he or she cease the conduct giving rise (whether in whole or in part) to the contravention and abstain from any repetition of that conduct;
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(b) a direction to the relevant director prohibiting the director, for the period specified in the direction (being a period of not more than 3 years’ duration), from performing functions in audit firms or public-interest entities;
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(c) subject to section 957G, a direction to the director to pay an amount, as specified in the direction but not exceeding €100,000, to the Director.
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(3) In default of payment of an amount referred to in subsection (2)(c), the Director may recover that amount as a simple contract debt in any court of competent jurisdiction.
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Relevant circumstances to be considered in imposing relevant sanctions on relevant director
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957D. (1) This section applies to a relevant director the subject of a decision under section 957B(2) that the director has engaged in conduct giving rise (whether in whole or in part) to a relevant contravention.
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(2) In imposing a relevant sanction on a relevant director, the Director shall consider the following circumstances:
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(a) the gravity and duration of the relevant contravention;
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(b) the degree of responsibility of the relevant director;
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(c) the financial strength of the relevant director (including the annual income of the director);
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(d) the amount of profits gained or losses avoided by the relevant director in consequence of the contravention, in so far as they can be determined;
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(e) the level of cooperation of the relevant director with the Supervisory Authority or Director, or both;
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(f) previous impositions of relevant sanctions on the relevant director.
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Resolution of suspected certain conduct by agreement - relevant director
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957E. (1) Subject to subsection (2), if the Director believes on reasonable grounds that a relevant director has engaged in conduct (in this section referred to as the ‘relevant conduct’) giving rise (whether in whole or in part) to a relevant contravention referred to in section 936A(1), the Director and the relevant director may, at their absolute discretion, enter into an agreement (in this section referred to as a ‘section 957E agreement’) to resolve the matters relating to such conduct.
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(2) The following provisions shall apply to the section 957E agreement:
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(a) the agreement may be entered into notwithstanding that no investigation under Part 13 into the relevant conduct has been commenced;
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(b) the agreement may be entered into after an investigation under Part 13 into the relevant conduct has been commenced but not, subject to paragraph (d), after it has been completed;
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(c) without prejudice to the generality of the terms of the agreement, such terms may include terms under which the relevant director accepts the imposition of one or more relevant sanctions that may be imposed under section 957B(2);
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(d) the agreement may be entered into after an investigation under Part 13 has been undertaken and carried out only to the extent to determine which sanctions (if any) referred to in paragraph (c) to impose on the relevant director;
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(e) the terms of the agreement are binding on the Director and the relevant director.
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(3) Subject to subsection (6), the provisions of sections 957C, 957D, 957F, 957G and 957H shall apply, with any necessary modifications, to any relevant sanctions imposed on a relevant director pursuant to a section 957E agreement as those sections apply to any relevant sanctions imposed on a relevant director otherwise than pursuant to a section 957E agreement.
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(4) Subject to subsection (5), where the relevant director with whom the Director has entered into the section 957E agreement fails to comply with one or more of the terms of the agreement, the Director may apply to the court for an order compelling that relevant director to comply with those terms.
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(5) In default of payment, any amount agreed to be paid to the Director by the relevant director under the section 957E agreement may be recovered by the Director from the relevant director as a simple contract debt in any court of competent jurisdiction.
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(6) The necessary modifications referred to in subsection (3), in so far as section 957F is concerned, include reading that section as if—
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(a) the following subsection were substituted for subsection (1) of that section:
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‘(1) Subject to subsection (3), the Director shall, in so far as a relevant decision imposes a relevant sanction on a relevant director, as soon as is practicable, publish on his or her website particulars of the relevant contravention to which the relevant sanction relates, particulars of the relevant conduct, particulars of the relevant sanction imposed and particulars of the relevant director on whom the relevant sanction was imposed.’,
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(b) subsections (2) and (4) of that section were deleted, and
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(c) in subsection (5) of that section, the reference to ‘or (2)’ were deleted.
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(7) Section 957I shall be disregarded for the purposes of a section 957E agreement.
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Publication of relevant sanction imposed on relevant director
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957F. (1) Subject to subsections (2) and (3), the Director shall, in so far as a relevant decision imposes a relevant sanction on a relevant director, as soon as is practicable after—
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(a) that decision has been confirmed by the court as referred to in section 957I(4), or
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(b) a decision of the court under section 957I(2)(b) has been made to impose a different relevant sanction on the relevant director,
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publish on his or her website particulars of the relevant contravention to which the relevant sanction relates, particulars of the relevant conduct, particulars of the relevant sanction imposed and particulars of the relevant director on whom the relevant sanction was imposed.
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(2) Subject to subsection (4), if there is an appeal to the court from a confirmation referred to in subsection (1)(a), or a decision referred to in subsection (1)(b), the Director shall, as soon as may be, as he or she considers appropriate, publish particulars on his or her website of the status or outcome of the appeal.
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(3) The Director shall publish the particulars, comprising a public notice of a relevant sanction imposed, on an anonymous basis on the Director’s website in any one or more of the following circumstances:
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(a) the Director, following an assessment of the proportionality of the publication of those particulars in accordance with subsection (1) in so far as personal data are concerned, is of the opinion that, in relation to the relevant sanction imposed on the relevant director, such publication would be disproportionate;
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(b) the Director is of the opinion that the publication of those particulars in accordance with subsection (1) would jeopardise the stability of financial markets or an ongoing criminal investigation;
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(c) the Director is of the opinion that the publication of those particulars in accordance with subsection (1) would cause disproportionate damage to the relevant director.
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(4) Subsection (2) shall not apply in any case where subsection (3) applies.
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(5) The Director shall ensure that particulars published on his or her website in accordance with subsection (1) or (2) remain on his or her website for at least 5 years.
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(6) The Director shall, as soon as is practicable after publishing a public notice of a relevant sanction imposed in relation to a relevant director, give particulars of the relevant director and of the relevant sanction imposed to the Supervisory Authority.
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Limitations on imposing monetary sanctions on relevant director
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957G. (1) If the Director decides to impose a monetary sanction on a relevant director, the Director shall not impose an amount that would be likely to cause the relevant director to be adjudicated bankrupt.
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(2) If the conduct engaged in by the relevant director has given rise (whether in whole or in part) to 2 or more relevant contraventions, the Director shall not impose more than one monetary sanction on the relevant director in respect of the same conduct.
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Relevant director not to be liable to be penalised twice for same conduct
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957H. (1) If the Director imposes a monetary sanction on a relevant director and the conduct engaged in by the relevant director that has given rise (whether in whole or in part) to the relevant contravention is an offence under the law of the State, the relevant director shall not be liable to be prosecuted or punished for the offence under that law.
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(2) The Director shall not impose a monetary sanction on a relevant director if—
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(a) the relevant director has been charged with having committed an offence under a law of the State and has either been found guilty or not guilty of having committed the offence, and
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(b) the offence involves the conduct engaged in by the relevant director that has given rise (whether in whole or in part) to the relevant contravention.
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Appeals to and orders of court, including orders confirming decisions of Director
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957I. (1) In an appeal under section 957B(3), the court may consider any evidence adduced or argument made, whether or not adduced or made to the Director.
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(2) On the hearing of such an appeal, the court may make any order or give any direction it thinks fit, including an order—
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(a) confirming the decision under appeal, or
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(b) modifying or annulling that decision.
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(3) A relevant decision, in so far as it relates to the imposition of a relevant sanction on a relevant director, does not take effect until that decision is confirmed by the court either—
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(a) on appeal under section 957B(3), or
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(b) on application by the Director under subsection (4).
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(4) On application by motion on notice by the Director for an order confirming a decision referred to in subsection (3), the court may make an order confirming the decision or may refuse to make such an order.
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(5) On an application under section 957E(4) for an order compelling compliance with a section 957E agreement, the court may make any order or give any direction as it thinks fit.”.
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