Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021
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Virtual asset service providers | ||
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25. The Act of 2010 is amended, in Part 4, by the insertion of the following Chapter after Chapter 9: | ||
“Chapter 9A | ||
Virtual Asset Service Providers | ||
Interpretation | ||
106A. In this Chapter— | ||
‘Act of 1942’ means the Central Bank Act 1942 ; | ||
‘Bank’ means the Central Bank of Ireland; | ||
‘FATF’ means the Financial Action Task Force on Money Laundering and Countering the Financing of Terrorism established by the Paris G7 Summit of 1989; | ||
‘prescribed’ means prescribed by regulations made by the Bank; | ||
‘principal officer’ means— | ||
(a) in relation to a body corporate, any person who is a director, manager, secretary or other similar officer of the body corporate or any person purporting to act in such a capacity, or | ||
(b) in relation to a partnership— | ||
(i) any person who is a partner in, or a manager or other similar officer of, the partnership or any person purporting to act in such a capacity, and | ||
(ii) in a case where a partner of the partnership is a body corporate, any person who is a director, manager, secretary or other similar officer of such a partner or any person purporting to act in such a capacity; | ||
‘registration’ means a registration granted by the Bank under this Chapter to permit a person to carry on business as a virtual asset service provider and, if such a permission is amended under this Chapter, means the registration as amended. | ||
Fit and proper person | ||
106B. For the purposes of this Chapter, a person is not a fit and proper person if any of the following apply: | ||
(a) the person has been convicted of any of the following offences: | ||
(i) money laundering; | ||
(ii) terrorist financing; | ||
(iii) an offence involving fraud, dishonesty or breach of trust; | ||
(iv) an offence in respect of conduct in a place other than the State that would constitute an offence of a kind referred to in subparagraph (i), (ii) or (iii) if the conduct occurred in the State; | ||
(b) in a case where the person is an individual, the person is under 18 years of age; | ||
(c) the person— | ||
(i) has suspended payments due to the person’s creditors, | ||
(ii) is unable to meet other obligations to the person’s creditors, or | ||
(iii) is an individual who is an undischarged bankrupt; | ||
(d) the person is otherwise not a fit and proper person. | ||
Registrations held by partnerships | ||
106C. (1) A reference in a relevant document to a holder or proposed holder of a registration includes, in a case where the holder or proposed holder is a partnership, a reference to each partner of the partnership unless otherwise specified. | ||
(2) A reference in subsection (1) to a relevant document is a reference to any of the following: | ||
(a) this Chapter; | ||
(b) a regulation made for the purposes of this Chapter; | ||
(c) a registration or condition of a registration; | ||
(d) any notice or direction given under this Chapter; | ||
(e) any determination under this Chapter. | ||
(3) Without prejudice to the generality of subsection (1) or section 111, where any requirement is imposed by or under this Chapter on the holder of a registration, and failure to comply with the requirement is an offence, each partner of a partnership (being a partnership that is the holder of a registration) who contravenes the requirement is liable for the offence. | ||
Scope of Bank’s supervision - performance of certain functions | ||
106D. (1) The functions conferred on the Bank under— | ||
(a) Parts II, IIIC, VIIA, VIIIA and IX of the Act of 1942, | ||
(b) Parts 3 and 4 of the Central Bank Reform Act 2010 , and | ||
(c) Parts 2, 3, 7 and 9 of the Central Bank (Supervision and Enforcement) Act 2013 , | ||
shall, in addition to being performable for the purposes to which those provisions relate, be performable for the purposes of ensuring compliance with the Fourth Money Laundering Directive, the Fifth Money Laundering Directive and the Recommendations of FATF. | ||
(2) The Minister, where he or she considers it appropriate to do so and following consultation with the Bank, may make regulations conferring additional functions connected with the functions conferred by or under any enactment on the Bank for the purpose of ensuring compliance with the Fourth Money Laundering Directive, the Fifth Money Laundering Directive and the Recommendations of FATF. | ||
(3) Regulations under subsection (2) may provide for such additional functions as may be necessary for the more effective implementation of Recommendations made from time to time by FATF to address and mitigate the risks related to money laundering and terrorist financing. | ||
Obligation on virtual asset service providers to register with Bank | ||
106E. (1) A person shall not carry on business as a virtual asset service provider, claim to be a virtual asset service provider or represent that the person is a virtual asset service provider unless the person is registered with the Bank under this Chapter. | ||
(2) A person who contravenes subsection (1) commits an offence and is liable— | ||
(a) on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both, or | ||
(b) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 5 years or both. | ||
Transitional provision for existing virtual asset service providers | ||
106F. (1) Notwithstanding section 106E, a person carrying on business as a virtual asset service provider immediately before the coming into operation of this Chapter, is taken to be registered to carry on business as a virtual asset service provider until the Bank has granted or refused an application to register the person, provided that the person applies to the Bank under section 106G for registration, no later than 3 months after that section comes into operation. | ||
(2) Where a person is taken to be registered to carry on business as a virtual asset service provider under subsection (1), the Bank may do either or both of the following: | ||
(a) impose on that person such conditions or requirements or both as the Bank considers appropriate relating to the proper and orderly regulation and supervision of virtual asset service providers; | ||
(b) direct that person not to carry on business as a virtual asset service provider for such period (not exceeding 3 months) as is specified in the direction. | ||
(3) A condition or requirement imposed, or a direction given, under this section is an appealable decision for the purposes of Part VIIA of the Act of 1942. | ||
Application for registration | ||
106G. (1) An individual, body corporate or partnership may apply to the Bank to be registered under this section. | ||
(2) An application for registration under this section shall— | ||
(a) be in a form provided or specified by the Bank, | ||
(b) specify the name of— | ||
(i) the applicant, | ||
(ii) in a case where the applicant is a body corporate or partnership, any principal officer of the body corporate or partnership (as the case may be), and | ||
(iii) any person who is, or is proposed to be, a beneficial owner of the applicant, | ||
(c) specify the address at which the business of a virtual asset service provider is proposed to be carried on, | ||
(d) contain such other information, and be accompanied by such documents, as the Bank may reasonably request including, for the purposes of the Bank assessing whether persons referred to in paragraph (b) can comply with the provisions of Part 4 and are fit and proper persons, such information and documents as the Bank may reasonably require relating to the steps taken by the applicant to ensure that those persons are fit and proper persons and the process of verification carried out by the applicant for the purposes of so ensuring, and | ||
(e) be accompanied by such fees as are payable in accordance with section 32E of the Act of 1942 in respect of the performance by the Bank of its functions under the Act of 2010. | ||
(3) For the purposes of assessing whether a beneficial owner is a fit and proper person, the Bank may request the person by notice in writing to attend before a specified officer or employee of the Bank for interview. | ||
(4) Nothing in this section or any notice given by the Bank under this section requires a person— | ||
(a) to produce to the Bank a document that the person could not have been compelled to produce to a court, | ||
(b) to give to the Bank information that the person could not have been compelled to give to a court, or | ||
(c) to answer a question (either in writing or at interview) that the person could not have been compelled to answer in a court. | ||
(5) The Bank may, by written notice given to an applicant, require the applicant to provide, within the period of not less than 14 days specified in the notice, such additional information and documents as are reasonably necessary to enable the Bank to determine the application for registration. | ||
Grant and refusal of applications for registration | ||
106H. (1) The Bank may refuse an application for registration under section 106G only if— | ||
(a) the application does not comply with the requirements of section 106G, | ||
(b) the applicant does not provide any additional documents or information in accordance with a notice given under section 106G, | ||
(c) the Bank has reasonable grounds to be satisfied that information given to the Bank by the applicant in connection with the application is false or misleading in any material particular, | ||
(d) the Bank has reasonable grounds to be satisfied that any of the following persons, is not a fit and proper person: | ||
(i) the applicant; | ||
(ii) in a case in which the applicant is a body corporate or partnership, any principal officer of the body corporate or partnership (as the case may be); | ||
(iii) any person who is, or is proposed to be, a beneficial owner of the applicant, | ||
(e) the applicant has failed to satisfy the Bank that the applicant would, if registered, comply with the obligations imposed on the applicant under this Chapter, or as a designated person under this Part, | ||
(f) the applicant has failed to satisfy the Bank that the applicant’s business risk assessment, policies and procedures are adequate or fit for purpose, | ||
(g) the applicant has failed to satisfy the Bank that it has in place the resources, procedures and arrangements for the provision of the business of a virtual asset service provider and the performance of activities, taking into account the nature, scale and complexity of its business and all the obligations that the provider has to comply with as a designated person under this Act, | ||
(h) the applicant has failed to satisfy the Bank that the applicant would, if registered, comply with each of the following: | ||
(i) any conditions that the Bank would have imposed on the registration concerned, if the Bank had granted the application; | ||
(ii) any prescribed requirements referred to in section 106M, | ||
(i) the applicant is so structured, or the business of the applicant is so organised, that the applicant is not capable of being regulated under this Chapter, or as a designated person under this Part, to the satisfaction of the Bank, | ||
(j) where the applicant fails to demonstrate, where applicable, that it can manage and mitigate the risks of engaging in activities that involve the use of anonymity-enhancing technologies or mechanisms and other technologies that obfuscate the identity of the sender, recipient, holder or beneficial owner of a virtual asset, | ||
(k) in a case where the applicant is a body corporate, the body corporate is being wound up, | ||
(l) in a case where the applicant is a partnership, the partnership is dissolved by the death or bankruptcy of a partner or because of the operation of a provision of the Partnership Act 1890 or otherwise, | ||
(m) in a case where any person referred to in paragraph (d) has been registered to carry on business as a virtual asset service provider in another Member State, and an authority of the other Member State, that performs functions similar to those of the Bank under this Chapter, has terminated the permission of the person to carry on business as a virtual asset service provider in the other Member State, | ||
(n) in a case where the applicant is a subsidiary of a body corporate has been registered to carry on business as a virtual asset service provider in another Member State, and an authority of the other Member State, that performs functions similar to those of the Bank under this Chapter, has terminated the permission of the body corporate to carry on business as a virtual asset service provider in the other Member State, or | ||
(o) there are objective and demonstrable grounds for believing that the management body of the applicant may pose a threat to its sound and prudent management and to the adequate consideration of its clients and the integrity of the market. | ||
(2) If the Bank proposes to refuse an application, the Bank shall serve on the applicant a notice in writing— | ||
(a) specifying the grounds on which the Bank proposes to refuse the application, and | ||
(b) informing the applicant that the applicant may, within 21 days after the service of the notice, make written representations to the Bank showing why the Bank should grant the application. | ||
(3) Not later than 21 days after a notice is served on an applicant under subsection (2), the applicant may make written representations to the Bank showing why the Bank should grant the application. | ||
(4) The Bank may refuse an application only after having considered any representations made by the applicant in accordance with subsection (3). | ||
(5) As soon as practicable after refusing an application, the Bank shall serve a written notice of the refusal on the applicant including a statement setting out the grounds on which the Bank has refused the application. | ||
(6) A decision of the Bank to refuse an application under section 106G is an appealable decision for the purposes of Part VIIA of the Act of 1942. | ||
(7) If the Bank does not refuse the application, it shall grant it and, on granting the application, the Bank shall— | ||
(a) record the appropriate particulars of the applicant in the register of persons permitted by the Bank to carry on business as a virtual asset service provider, and | ||
(b) issue the applicant with a registration that permits the applicant to carry on business as a virtual asset service provider. | ||
Bank may impose conditions when granting an application for registration | ||
106I. (1) In granting an application for registration under this Chapter, the Bank may impose on the holder of the registration any conditions that the Bank considers necessary for the proper and orderly regulation of the holder’s business as a virtual asset service provider and, in particular, for preventing the business from being used to carry out money laundering or terrorist financing. | ||
(2) The Bank shall specify any such conditions in the registration granted to the holder or in one or more documents annexed to that registration. | ||
(3) If, under this section, the Bank imposes any conditions on a registration, the Bank shall serve on the holder of the registration, together with the registration, a written notice of the imposition of the conditions that includes a statement setting out the grounds on which the Bank has imposed the conditions. | ||
(4) A decision of the Bank to register a person subject to conditions under subsection (1) is an appealable decision for the purposes of Part VIIA of the Act of 1942. | ||
Terms of registration | ||
106J. (1) A registration comes into force on the day on which the registration is granted, or, if a later date is specified in the registration, on that later date, whether or not an appeal against any conditions of registration is made under section 106I. | ||
(2) A registration remains in force, unless sooner revoked under this Chapter from the date on which it comes into force. | ||
Bank may amend registration | ||
106K. (1) The Bank may amend a registration granted under this Chapter by varying, replacing or revoking any conditions or by adding a new condition if the Bank considers that the variation, replacement, revocation or addition is necessary for the proper and orderly regulation of the business of the holder of the registration as a virtual asset service provider and, in particular, for preventing the business from being used to carry out money laundering or terrorist financing. | ||
(2) If the Bank proposes to amend a registration under this section, the Bank shall serve on the holder of the registration, a notice in writing informing the holder of the Bank’s intention to amend the registration. | ||
(3) The notice shall— | ||
(a) specify the proposed amendment, and | ||
(b) inform the holder of the registration that the holder may, within 21 days after service of the notice, make written representations to the Bank showing why the Bank should not make that amendment. | ||
(4) Not later than 21 days after a notice is served under subsection (2) on the holder of a registration, the holder may make written representations to the Bank showing why the Bank should not amend the registration. | ||
(5) The Bank may amend a registration only after having considered any representations to the Bank made in accordance with subsection (4) showing why the Bank should not amend the registration. | ||
(6) The Bank shall serve written notice of any amendment of a registration on the holder of the registration including a statement setting out the grounds on which the Bank has amended the registration. | ||
(7) A decision of the Bank to amend a registration granted under this Chapter is an appealable decision for the purposes of Part VIIA of the Act of 1942. | ||
(8) The amendment of a registration under this section takes effect from the date of the notice of amendment or, if a later date is specified in the notice, from that date, whether or not an appeal against the amendment is made under this section. | ||
Regulatory disclosure statement | ||
106L. (1) Subject to subsection (2), the holder of a registration shall include a statement (in this section referred to as a ‘regulatory disclosure statement’) in the prescribed form in all advertisements for its services stating that the holder of the registration is registered and supervised by the Bank for anti-money laundering and countering the financing of terrorism purposes only. | ||
(2) For the purposes of this section, the Bank may prescribe the form of the regulatory disclosure statement including its size and colour and font type and the manner in which the disclosure statement shall be displayed. | ||
(3) In this section, ‘advertisement’ means any form of commercial communication which is intended to publicise or otherwise promote the holder of a registration in relation to the provision by the holder of virtual asset services. | ||
Offence to fail to comply with conditions or prescribed requirements | ||
106M. (1) The holder of a registration commits an offence if the holder fails to comply with— | ||
(a) any condition of the registration, or | ||
(b) any prescribed requirements. | ||
(2) A person who commits an offence under this section is liable— | ||
(a) on summary conviction, to a class C fine, or | ||
(b) on conviction on indictment, to a fine not exceeding €100,000. | ||
(3) The Bank may prescribe requirements for the purposes of subsection (1)(b) only if the Bank is satisfied that it is necessary to do so for the proper and orderly regulation of the business of virtual asset service providers and, in particular, for preventing such businesses from being used to carry out money laundering or terrorist financing. | ||
Holder of registration to ensure that beneficial owners are fit and proper persons | ||
106N. (1) The holder of a registration shall take reasonable steps to ascertain that any person who is a beneficial owner of the virtual asset service provider concerned is a fit and proper person. | ||
(2) A person who contravenes subsection (1) commits an offence. | ||
(3) A person who commits an offence under this section is liable— | ||
(a) on summary conviction, to a class C fine, or | ||
(b) on conviction on indictment, to a fine not exceeding €100,000. | ||
Revocation of registration by Bank on application of holder | ||
106O. The Bank shall revoke a registration on the application of the holder of the registration, but only if satisfied that the holder of the registration has fully complied with each of the following: | ||
(a) any conditions of the registration; | ||
(b) any prescribed requirements referred to in section 106M; | ||
(c) section 106N; | ||
(d) section 106Q; | ||
(e) section 106Y, | ||
and if satisfied that the persons in management positions have complied with their obligations to be fit and proper persons. | ||
Revocation of registration other than on application of holder | ||
106P. (1) The Bank may revoke a registration under this Chapter only if the Bank has reasonable grounds to be satisfied of any of the following: | ||
(a) the holder of the registration has not commenced carrying on business as a virtual asset service provider within 12 months after the date on which the registration was granted; | ||
(b) the holder of the registration has not carried on such a business within the immediately preceding 6 months; | ||
(c) the registration was obtained by means of a false or misleading representation; | ||
(d) any of the following persons is not a fit and proper person: | ||
(i) the holder of the registration; | ||
(ii) in a case where the holder of the registration is a body corporate, a partnership or an individual carrying on business as a virtual asset service provider, any principal officer of the body corporate or partnership (as the case may be); | ||
(iii) any person who is a beneficial owner of the business concerned; | ||
(e) the holder of the registration has contravened or is contravening the obligations imposed on virtual asset service providers, as designated persons, under this Part; | ||
(f) the holder of the registration has failed to satisfy the Bank that its business risk assessment, policies and procedures are adequate or fit for purpose; | ||
(g) the virtual asset service provider has contravened or is contravening any of the following: | ||
(i) a condition of the registration; | ||
(ii) a specified requirement referred to in section 106M; | ||
(iii) section 106N; | ||
(iv) section 106Q; | ||
(v) section 106Y; | ||
(h) the holder of the registration is so structured, or the business of the holder is so organised, that the holder is not capable of being regulated under this Chapter or as a designated person under this Part; | ||
(i) in a case where the holder of the registration is a body corporate, the body corporate is being wound up; | ||
(j) in a case where the holder of the registration is a partnership, the partnership is dissolved by the death or bankruptcy of a partner or because of the operation of a provision of the Partnership Act 1890 or otherwise; | ||
(k) in a case where any person referred to in paragraph (d) has been registered to carry on business as a virtual asset service provider in another Member State, and an authority of the other Member State, that performs functions similar to those of the Bank under this Chapter, has terminated the permission of the person to carry on business as a virtual asset service provider in the other Member State; | ||
(l) in a case where the holder of the registration is a subsidiary of a body corporate that has been registered to carry on business as a virtual asset service provider in another Member State, and an authority of the other Member State, that performs functions similar to those of the Bank under this Chapter, has terminated the permission of the body corporate to carry on business as a virtual asset service provider in the other Member State. | ||
(2) If the Bank proposes to revoke a registration under this section, the Bank shall serve on the holder of the registration a notice in writing informing the holder of the Bank’s intention to revoke the registration. | ||
(3) The notice shall— | ||
(a) specify the grounds on which the Bank proposes to revoke the registration, and | ||
(b) inform the holder that the holder may, within 21 days after service of the notice, make written representations to the Bank showing why the Bank should not revoke the registration. | ||
(4) Not later than 21 days after a notice is served under subsection (2) on the holder of a registration, the holder may make written representations to the Bank showing why the Bank should not revoke the registration. | ||
(5) The Bank may revoke the registration only after having considered any representations made by the holder of a registration in accordance with subsection (4). | ||
(6) As soon as practicable after revoking a registration under this section, the Bank shall serve written notice of the revocation on the person who was the holder of a registration including a statement setting out the reasons for revoking the registration. | ||
(7) A decision of the Bank to revoke a registration under this section is an appealable decision for the purposes of Part VIIA of the Act of 1942. | ||
(8) The revocation of a registration under this section takes effect from the date of the notice of revocation or, if a later date is specified in the notice, from that date, whether or not an appeal against the revocation is made under this section. | ||
Direction not to carry out business other than as directed | ||
106Q. (1) If the Bank reasonably believes that there may be grounds for revoking a registration under section 106P, the Bank may serve on the holder of the registration a direction in writing prohibiting the holder from carrying on business as a virtual asset service provider other than in accordance with conditions specified by the Bank in the direction. | ||
(2) The Bank shall include in a direction under this section a statement— | ||
(a) setting out the reasons for giving the direction, | ||
(b) specifying the period during which the direction is to remain in force, and | ||
(c) specifying the conditions with which the holder of the registration is required to comply. | ||
(3) A decision of the Bank to give a direction under subsection (1) is an appealable decision for the purposes of Part VIIA of the Act of 1942. | ||
(4) The Bank may, by notice in writing served on the holder of the registration concerned, amend or revoke a direction given under this section. | ||
(5) Without prejudice to the generality of subsection (3), the Bank may, by notice in writing given to the holder of the registration concerned, extend the period during which a direction remains in force by a further period or periods not exceeding 6 months. | ||
(6) A direction under this section takes effect from the date on which it is given or, if a later date is specified in the direction, from that date, whether or not an appeal against the direction is made under this section. | ||
(7) A direction under this section ceases to have effect— | ||
(a) at the end of the period, not exceeding 6 months, specified in the direction, or if the period is extended under subsection (4), at the end of the extended period, or | ||
(b) on the revocation of the holder’s registration under this Chapter, | ||
whichever occurs first. | ||
(8) A person who contravenes a direction given under this section, or fails to comply with a condition contained in the direction, commits an offence. | ||
(9) A person who commits an offence under this section is liable— | ||
(a) on summary conviction, to a class A fine, or | ||
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or both. | ||
Bank to publish notice of revocation | ||
106R. As soon as is practicable after revoking a registration under section 106O or 106P, the Bank shall publish in Iris Oifigiúil a notice giving particulars of the revocation. | ||
Register of Virtual Asset Service Providers | ||
106S. (1) The Bank shall establish and maintain a register (to be known as ‘the Register of Virtual Asset Service Providers’ and in this Act referred to as ‘the Register’) of persons registered under this Chapter to carry on business as a virtual asset service provider containing— | ||
(a) the name and the address of the principal place of business of each person registered to carry on business as a virtual asset service provider, | ||
(b) such other information as may be prescribed. | ||
(2) The Register may be in book form, electronic form or such other form as the Bank may determine and may be maintained in an electronic, mechanical or other non-written form only if it is capable of being reproduced in a written form. | ||
(3) The Bank shall publish a register in written, electronic or other form and a member of the public is entitled to obtain a copy of the Register or of an entry in the Register on payment of such reasonable copying charges as may be prescribed (if any) under section 32E of the Act of 1942 for the purposes of this section. | ||
(4) The holder of a registration to which an entry in the Register relates, shall as soon as practicable after the holder becomes aware of any error in the entry, or any change in circumstances that is likely to have a bearing on the accuracy of the entry, give notice in writing to the Bank of the error, or change in circumstances, as the case may be. | ||
(5) In any legal proceedings, a certificate purporting to be signed by the Bank and stating that a person— | ||
(a) is recorded in the Register as the holder of a registration; | ||
(b) is not recorded in the Register as the holder of a registration; | ||
(c) was recorded in the Register as being, at a specified date or during a specified period, the holder of a registration; or | ||
(d) was not recorded in the Register as being, at a specified date or during a specified period, the holder of a registration, | ||
is evidence of the matter referred to in paragraph (a), (b), (c) or (d) (as the case may be), and is taken to have been signed by the person purporting to have signed it, unless the contrary is shown. | ||
(6) The Bank may prescribe particulars for the purposes of subsection (1)(b) or section 106T only if satisfied that those particulars reasonably relate to the business of virtual asset service providers or to the regulation of the business of virtual asset service providers under this Chapter. | ||
Restriction on acquisition of beneficial interest in holders of registrations | ||
106T. (1) A proposed acquirer shall not, directly or indirectly, acquire a beneficial interest in the holder of a registration without the prior approval of the Bank in writing of the intended size of the interest. | ||
(2) A notification under subsection (1) shall include sufficient information to enable the Bank to consider the proposed acquisition according to the nature of the proposed acquirer and the proposed acquisition, and in particular shall include information on who the proposed acquirers are, the persons to be responsible for their management (where applicable), how the proposed acquisition is to be financed and the structure of the resulting group. | ||
(3) In assessing a proposed acquisition, the Bank shall— | ||
(a) have regard to the likely influence of the proposed acquirer on the holder of the registration concerned, and | ||
(b) appraise the suitability of the proposed acquirer and the financial soundness of the proposed acquisition concerned against all of the following criteria: | ||
(i) the reputation of the proposed acquirer; | ||
(ii) the reputation and experience of the individuals who will direct the business of the holder of the registration concerned as a result of the proposed acquisition; | ||
(iii) the financial soundness of the proposed acquirer, in particular in relation to the type of business pursued and envisaged by the holder of the registration concerned; | ||
(iv) whether there are reasonable grounds to suspect that, in connection with the proposed acquisition, money laundering or terrorist financing is being or has been committed or attempted, or that the proposed acquisition could increase the risk of money laundering or terrorist financing. | ||
(4) If, on completing the assessment of a proposed acquisition, the Bank decides to oppose it, the Bank will inform the proposed acquirer concerned in writing and give reasons for that decision and the proposed acquirer shall not complete the proposed acquisition. | ||
(5) If a proposed acquirer purports to complete a proposed acquisition in contravention of subsection (4)— | ||
(a) the purported acquisition is of no effect to pass title to any share or any other interest, and | ||
(b) any exercise of powers based on the purported acquisition of the interest concerned is void. | ||
(6) A decision by the Bank to oppose a proposed acquisition is an appealable decision for the purposes of Part VIIA of the Act of 1942. | ||
(7) In this section— | ||
‘proposed acquirer’ means a person who proposes to acquire or increase a beneficial interest in the holder of a registration and includes a group of persons acting in concert to acquire such an interest; | ||
‘proposed acquisition’ means the proposed acquisition of a beneficial interest in the holder of a registration. | ||
Powers of Bank in relation to beneficial owners | ||
106U. (1) Where the Bank has reason to believe that a person who is a beneficial owner of the business of the holder of a registration is exercising an influence on the direction of the affairs of the holder of the registration which is, or is likely to be, prejudicial to the compliance by the holder concerned with any obligations under this Act, the Bank shall, subject to subsection (2), notify the person that it so believes, and direct the person in writing to take specified measures to bring that influence to an end within a specified period. | ||
(2) Before issuing a direction to a person under subsection (1), the Bank shall notify the person of its intention to issue the direction and shall give the person an opportunity to make such representations on the matter as he or she may wish to make within a period specified by the Bank in the notification. | ||
(3) A direction issued under subsection (1) is an appealable decision for the purposes of Part VIIA of the Act of 1942. | ||
(4) Where the Bank is of the opinion that a direction under subsection (1) has not been complied with by the person concerned, or has not been complied with within the specified period of time, the Bank may, without prejudice to any of its other functions, apply to the Court in a summary manner for any one or more of the following: | ||
(a) an injunction prohibiting the person concerned from issuing directions to directors or to any manager, secretary, officer or staff of, or persons engaged by, the holder of the registration concerned and prohibiting any director, manager, secretary, officer or any other person acting on behalf of the holder of the registration from seeking directions from, or consulting, the person concerned, or from acting on such directions without the consent of the Bank; | ||
(b) an order suspending the exercise by the person concerned of any interest in or voting rights attaching to shares held by that person in the holder of the registration concerned; | ||
(c) an order requiring the person concerned to dispose of some or all of his shareholding, interests or rights in the holder of the registration concerned within a period specified by the Court; | ||
(d) such other order as the Court considers appropriate. | ||
(5) 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 before it may be heard otherwise than in public. | ||
(6) In this section ‘Court’ means the High Court. | ||
Obligation on holder of registration to report certain suspicions to Bank | ||
106V. If at any time the holder of a registration suspects on reasonable grounds that any person who is a beneficial owner of the holder of the registration is not a fit and proper person, it shall notify the suspicion in writing to the Bank together with particulars setting out the basis for the suspicion. | ||
Provision of information by Garda Síochána as to whether or not person is fit and proper person | ||
106W. (1) The Bank may request the Commissioner of the Garda Síochána to provide any information that is required to assist the Bank in determining, for the purposes of this Chapter, whether or not any of the following persons is a fit and proper person: | ||
(a) the holder or proposed holder of a registration; | ||
(b) in a case where the holder or proposed holder of a registration is a body corporate, a partnership or an individual carrying on, or proposing to carry on, business as a virtual asset service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be); | ||
(c) any person who is a beneficial owner of the business of the holder or proposed holder of the registration concerned. | ||
(2) Notwithstanding any other enactment or rule of law, the Commissioner of the Garda Síochána shall provide the Bank with information in accordance with a request of the Bank under this section. | ||
Bank’s power to make regulations | ||
106X. (1) The Bank may by regulations provide for any matter referred to in this Chapter as prescribed or to be prescribed. | ||
(2) Without prejudice to any provision of this Chapter, regulations under this Chapter may contain such incidental, supplementary and consequential provisions as appear to the Bank to be necessary or expedient for the purposes of the regulations. | ||
(3) Every regulation made by the Bank under this Chapter 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 is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. | ||
Holders of registrations to retain certain records | ||
106Y. (1) The holder of a registration shall— | ||
(a) retain at an office or other premises in the State such records as may be specified by the Bank, and | ||
(b) notify the Bank in writing of the address of any office or other premises where those records are retained. | ||
(2) The requirement imposed by subsection (1) is in addition to, and not in substitution for, any other requirements imposed under any other enactment or rule of law with respect to the retention of records by the holder of a registration, including the requirements specified in section 55. | ||
(3) The holder of a registration shall retain the records referred to in subsection (1) for a period of not less than 6 years after— | ||
(a) in the case of a record made in relation to a customer of the virtual asset service provider, the last dealing with the customer, or | ||
(b) in any other case, the record is made. | ||
(4) The holder of a registration may keep the records referred to in subsection (1) wholly or partly in an electronic, mechanical or other non-written form only if they are capable of being reproduced in a written form. | ||
(5) The obligations that are imposed on the holder of a registration under this section, continue to apply to a person who has been the holder of a registration, but has ceased to hold a registration or to carry on business as a virtual asset service provider. | ||
(6) A requirement that the holder of a registration that is a body corporate, retain any record under this section, applies to any body corporate that is a successor to, or a continuation of, the body corporate. | ||
(7) The Bank may prescribe requirements relating to the retention of records referred to in this section of a body corporate that is wound up or a partnership that is dissolved. | ||
(8) A person who fails to comply with this section commits an offence and is liable— | ||
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or | ||
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or both.”. |