Unit Trusts Act, 1990

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Number 37 of 1990

UNIT TRUSTS ACT, 1990

ARRANGEMENT OF SECTIONS

Number 37 of 1990

UNIT TRUSTS ACT, 1990

AN ACT TO MAKE FRESH PROVISION, IN THE PUBLIC INTEREST AND IN THE INTERESTS OF HOLDERS OF UNITS OF UNIT TRUST SCHEMES, FOR THE CONTROL AND REGULATION OF SUCH SCHEMES, TO PROHIBIT IN CERTAIN CIRCUMSTANCES THE ADVERTISING OF, AND THE SALE OR PURCHASE OF UNITS OF, SUCH SCHEMES OR SCHEMES OF A SIMILAR NATURE, TO REPEAL THE UNIT TRUSTS ACT, 1972 , AND TO PROVIDE FOR OTHER MATTERS CONNECTED WITH THE MATTERS AFORESAID. [26th December, 1990]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Interpretation.

1.—(1) In this Act, unless the context otherwise requires—

“the Act of 1972” means the Unit Trusts Act, 1972 ;

“authorised unit trust scheme” means a unit trust scheme which is authorised by the Bank under section 4 and “authorisation”, in relation to a unit trust scheme, shall be construed accordingly;

“the Bank” means the Central Bank of Ireland;

“company” means a company within the meaning of the Companies Act, 1963 , or a company incorporated in the State by statute or charter;

“contravention” includes, in relation to any provision, a failure to comply with that provision, and “contravene” shall be construed accordingly;

“debentures” means any debentures, debenture stock or bonds of any body corporate, incorporated in or outside the State, whether constituting a charge on the assets of the body or not;

“the European Communities” has the same meaning as in section 1 of the European Communities Act, 1972 ;

“holding company” has the same meaning as in the Companies Act, 1963 ;

“the Minister” means the Minister for Industry and Commerce;

“the register” means the register established and maintained under section 3 ;

“securities” means—

(a) shares or debentures, or rights or interests (whether described as units or otherwise) in any shares or debentures, or

(b) securities of the Government or the government of any country or territory outside the State, or

(c) rights (whether actual or contingent) in respect of money lent to, or deposited with, any holder of a licence under section 9 of the Central Bank Act, 1971 , industrial and provident society, friendly society, building society, the Agricultural Credit Corporation public limited company, the company formed and registered by virtue of section 2 of the Industrial Credit Act, 1933 , the Post Office Savings Bank or any trustee savings bank (within the meaning of the Trustee Savings Banks Act, 1989 );

“shares” means shares in the share capital of a body corporate or stock of a body corporate;

“subsidiary” has the same meaning as in the Companies Act, 1963 ;

“trust deed” means the deed in which are expressed the trust or trusts created in pursuance of a unit trust scheme and references to the trust deed of a unit trust scheme shall be construed accordingly;

“the UCITS Regulations” means the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 ( S.I. No. 78 of 1989 );

“unit-holder” means the holder of one or more units of a unit trust scheme and references to a unit-holder in such a scheme shall be construed accordingly;

“units”, in relation to a unit trust scheme, means any units (whether described as units or otherwise) into which are divided the beneficial interests in the assets subject to any trust created under the scheme;

“unit trust scheme” means any arrangement made for the purpose, or having the effect, of providing facilities for the participation by the public, as beneficiaries under a trust, in profits or income arising from the acquisition, holding, management or disposal of securities or any other property whatsoever.

(2) Any reference in this Act to a management company under a unit trust scheme or to a trustee under such a scheme shall be construed as a reference to the person in whom are vested the powers of management relating to property for the time being subject to any trust created in pursuance of the scheme or, as the case may be, to the person in whom such property is or may be vested in accordance with the terms of the trust.

(3) Any reference in this Act to an authorisation, in relation to a unit trust scheme, standing revoked under this Act shall be construed as a reference to an authorisation standing revoked under Regulation 102 (as adapted by section 15 ) of the UCITS Regulations.

(4) For the purposes of the adaptation by section 15 of certain provisions of the UCITS Regulations to unit trust schemes, the said provisions shall be construed as one with this Act.

(5) In this Act—

(a) a reference to a section is to a section of this Act and a reference to a subsection is to the subsection of the section in which the reference occurs, unless it is indicated that reference to some other provision is intended;

(b) a reference to any other enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or adapted by or under any other enactment, including this Act.

Non-application of this Act to certain undertakings.

2.—The provisions of this Act shall not apply to an undertaking for collective investment in transferable securities (within the meaning of the UCITS Regulations) that is authorised under those Regulations or by a competent authority in another member state of the European Communities in accordance with Council Directive 85/611/EEC of 20th December, 1985 ¹ (as amended by Council Directive 88/220/EEC of 22nd March, 1988² ).

Register of authorised unit trust schemes.

3.—(1) The Bank shall establish and maintain a register of authorised unit trust schemes.

(2) The register shall be open to the inspection of any member of the public on the payment of such fee as the Bank may specify.

(3) The register established and maintained under section 2 of the Act of 1972 (repealed by this Act) shall form part of the register.

(4) The Bank shall, within 21 days after the date of the authorisation by it under section 4 of a unit trust scheme, publish a notice to that effect in Iris Oifigiúil.

(5) The Bank shall publish from time to time, but not less frequently than once a year, in such manner as it thinks fit, the names of all unit trust schemes which have been authorised by it under section 4 and whose authorisation has not been revoked under this Act.

(6) The report of the Bank under section 20 of the Central Bank Act, 1989 , shall contain a report on the exercise of its functions under this Act.

Authorisation of unit trust schemes.

4.—(1) Upon application to the Bank in accordance with this section by the management company and trustee under a unit trust scheme, the Bank shall authorise the scheme if, but only if—

(a) the Bank is satisfied that the competence of the management company and trustee in respect of matters of the kind with which they would be concerned in relation to a unit trust scheme and their probity are such as to render them suitable to act as management company and trustee, respectively, under the scheme,

(b) the management company under the scheme is a body corporate that is incorporated under the law of the State or any other member state of the European Communities, has, in the opinion of the Bank, sufficient financial resources at its disposal to enable it to conduct its business effectively and meet its liabilities and will be in a position to comply with any conditions imposed by the Bank under section 5 ,

(c) the trustee under the scheme is a body corporate that is incorporated under the law of the State or any other member state of the European Communities and—

(i) has, in the opinion of the Bank, sufficient financial resources at its disposal to enable it to conduct its business effectively and meet its liabilities,

(ii) will be in a position to comply with any conditions imposed by the Bank under section 5 , and

(iii) has satisfied the Bank that it has the appropriate expertise and experience to carry out its functions under this Act,

(d) the Bank is satisfied that the scheme is such that the effective control over the affairs of the management company and of the trustee under the scheme will be exercised independently of one another,

(e) the Bank is satisfied that the scheme is such as to secure that every trust created in pursuance of the scheme is expressed in a deed which complies with the provisions of this Act and that the deed contains a covenant providing that the scheme will be carried on in compliance with the provisions of this Act,

(f) a copy of the deed aforesaid is deposited with the Bank, and

(g) the name of the scheme is not, in the opinion of the Bank, undesirable.

(2) The Minister may direct the Bank to make any authorisation by it under this section subject to the imposition by it of conditions or requirements specified in his direction (being conditions or requirements which relate to such matters, which the Minister is satisfied, after consultation with the Minister for Finance and the Bank, do not constrain the prudential supervision by the Bank of a scheme) and, accordingly, the Bank shall make such authorisation subject to every condition or requirement so specified.

(3) A direction under subsection (2) may relate to unit trust schemes generally, schemes of a particular class or a particular scheme.

(4) The management company and trustee under an authorised unit trust scheme shall comply with any conditions or requirements imposed by the Bank under subsection (2) and which are applicable to that scheme.

(5) An application for the authorisation of a unit trust scheme shall be made in writing and shall contain such information as the Bank may specify for the purpose of determining the application (including such additional information as the Bank may specify in the course of determining the application).

(6) The authorisation of a unit trust scheme by the Bank shall not constitute a warranty by the Bank as to the performance of the scheme and the Bank shall not be liable for the performance or default of the scheme.

Powers of Bank.

5.—(1) Notwithstanding any other powers which may be available to the Bank under any other enactment, the Bank may impose such conditions for the authorisation of a unit trust scheme under section 4 as it considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of unit trust schemes.

(2) The power to impose conditions referred to in subsection (1) shall include power to impose such conditions from time to time in respect of the manner in which the business of a unit trust scheme authorised under section 4 shall be operated as the Bank considers appropriate and prudent for the purposes referred to in subsection (1).

(3) Conditions imposed under this section may be imposed generally or on a particular unit trust scheme, or by reference to particular classes of scheme, or by reference to any other matter the Bank considers appropriate and prudent for the purposes referred to in subsection (1).

(4) Without prejudice to the generality of subsections (1), (2) and (3), conditions imposed by the Bank on a unit trust scheme may make provision for any or all of the following matters—

(a) the prudential requirements of the investment policies of the scheme,

(b) borrowing policies of the scheme,

(c) prospectuses and other information disseminated in relation to the scheme,

(d) such other supervisory and reporting requirements and conditions relating to its business.

(5) The Bank may amend or revoke a condition imposed by it under this section.

(6) The management company and trustee under an authorised unit trust scheme shall comply with any conditions imposed by the Bank under this section and which are applicable to that scheme.

Refusal of authorisation.

6.—(1) Where the Bank decides to refuse authorisation of a unit trust scheme under section 4 it shall notify the management company and trustee under the scheme of its decision and of the reasons therefor. The management company or trustee may apply to the High Court in accordance with Regulation 105 (as adapted by section 15 ) of the UCITS Regulations.

(2) The management company or trustee shall have the same right to apply to the High Court as in subsection (1) if a decision on authorisation under section 4 has not been taken by the Bank within 6 months of the submission of an application for authorisation which includes the information, other than any additional information, specified by the Bank under subsection (5) of that section.

Alteration in trust deed of, or change in name of, authorised unit trust scheme.

7.—(1) No alteration in the trust deed of an authorised unit trust scheme or change in the name of such scheme shall be made without the approval of the Bank and any person who makes an alteration or change as aforesaid without such approval shall be guilty of an offence.

(2) Within 21 days after the making of an alteration in the trust deed of an authorised unit trust scheme or a change in the name of such scheme the management company under the scheme shall deposit with the Bank a copy of the deed as so altered or containing the alterations or (as the case may be) particulars of the change in name.

(3) Where the management company under an authorised unit trust scheme fails to comply with subsection (2), it shall be guilty of an offence.

Replacement of management company or trustee.

8.—(1) Neither the management company nor the trustee under an authorised unit trust scheme may be replaced by another management company or trustee (as the case may be) without the approval of the Bank.

(2) The trust deed of an authorised unit trust scheme shall specify the conditions under which there may be effected, and the procedure to be followed with respect to, the replacement of the management company or trustee under the scheme with another management company or trustee (including such a replacement by the Bank under subsection (3)) and shall contain provisions to ensure the protection of unit-holders in the event of any such replacement.

(3) The Bank may, where it appears to it to be desirable in the interests of unit-holders or potential unit-holders in an authorised unit trust scheme to do so, replace the management company or trustee under the scheme with another management company or trustee.

(4) Where the Bank proposes to replace a management company or trustee under subsection (3) it shall give the management company or trustee, as the case may be, notice of its intention to do so, which notice shall contain a statement of the reasons for which the Bank proposes to act and of the right of the management company or trustee (as the case may be) under subsection (5) to make representations.

(5) A management company or trustee which is given a notice under subsection (4) may, within 30 days of the date on which the notice is given, make written representations to the Bank.

(6) The Bank shall have regard to any representations made to it in accordance with subsection (5) in determining whether to replace the management company or trustee.

(7) The management company or trustee (as the case may be) may apply to the High Court in accordance with Regulation 105 (as adapted by section 15 ) of the UCITS Regulations where the Bank replaces the management company or trustee under this section.

(8) Upon the replacement by the Bank under this section of a management company or trustee under an authorised unit trust scheme, that management company or trustee (as the case may be) shall cease to hold office as management company or trustee under the scheme and, in either case, its powers and duties under the scheme shall be exercised and carried out by the new management company or trustee (as the case may be).

Prohibition of the sale or purchase of units of unauthorised unit trust schemes and certain like schemes.

9.—(1) The management company or trustee (if any) under, or any person concerned with the management or supervision of—

(a) a unit trust scheme (other than a scheme to which subsection (2) applies) that is not an authorised unit trust scheme, or

(b) a scheme which is an arrangement of a kind (not being an arrangement to which subsection (2) applies) made for the purpose, or having the effect, solely or mainly, of providing facilities for the participation by the public, as beneficiaries (otherwise than under a trust or through membership of a company, a building society, a friendly society or an industrial and provident society) in profits or income arising from the acquisition, holding, management or disposal of securities or any other property whatsoever,

shall not, without the approval of the Bank (which approval may be subject to such conditions as the Bank thinks fit to impose) sell or purchase units of the scheme or make solicitation in respect of such sale or purchase.

(2) This subsection applies to a unit trust scheme or an arrangement which is made for the purpose or has the effect, solely or mainly, of providing facilities for the participation by the public, as beneficiaries under a trust, or (in the case of an arrangement) otherwise than under a trust, in profits or income arising from the acquisition, holding, management or disposal of securities or any other property whatsoever and which is administered by the holder of an authorisation under the European Communities (Life Assurance) Regulations, 1984 ( S.I. No. 57 of 1984 ), and for participation in which a policy of assurance upon human life is required to be effected.

(3) The prohibition contained in subsection (1) does not apply to the purchase from a unit-holder of units of a unit trust scheme the authorisation of which under this Act stands revoked.

(4) A person who sells or purchases units, or makes a solicitation in respect of such sale or purchase, in contravention of subsection (1) (whether because the approval of the Bank under that subsection has not been obtained in respect thereof or because any condition to which the approval is subject has not been complied with) shall be guilty of an offence.

Prohibition of certain advertising in relation to unauthorised unit trust schemes and certain like schemes.

10.—(1) There shall not be published or communicated, without the approval of the Bank (which approval may be subject to such conditions as the Bank thinks fit to impose) advertisements in relation to or referring to a scheme to which paragraph (a) or (b) of section 9 (1) applies.

(2) (a) Whenever it is shown to the satisfaction of the Bank, in the case of a newspaper or magazine printed outside the State that, in the opinion of the Bank, has only a small circulation in the State, that compliance with this section would necessitate the production for circulation in the State of a special edition of the newspaper or magazine and that the cost of such production would impose a burden on the owner of the newspaper or magazine that would be unreasonably heavy in all the circumstances, the Bank may exempt from the application of this section advertisements published in the newspaper or magazine.

(b) An exemption under this subsection shall be subject to such conditions, if any, as the Bank may impose and specify in the exemption and its duration shall be either without limit as to time or for such period as the Bank may specify in the exemption.

(c) The Bank may revoke an exemption under this subsection, impose conditions to which such an exemption previously granted shall be subject, amend any conditions specified in such an exemption, specify, in relation to such an exemption whose duration is without limit as to time, a time for its expiration or vary the period of duration of such an exemption.

(d) Whenever the Bank exercises a power under this subsection, notice of such exercise and its nature and the name of the newspaper or magazine to which it relates shall be published in Iris Oifigiúil.

(3) Where an advertisement is published or communicated in contravention of subsection (1) (whether because the approval of the Bank under subsection (1) or an exemption by it under subsection (2) has not been obtained in respect thereof or because any condition to which the approval or exemption is subject has not been complied with) the person who publishes or communicates the advertisement and any person who procures such publishing or communication shall each be guilty of an offence.

(4) In this section “advertisement” includes every form of recommendation of any matter to which this section relates, including in particular the display or publication of any such matter by way of leaflet, notice, circular, pamphlet, brochure, photograph, film, video, sound broadcasting, television, electronic communication or personal canvassing.

Assets of unit trust schemes.

11.—(1) The proceeds of the sale by the management company under a unit trust scheme of any units of the scheme and any income in respect of the assets of the scheme that is not distributed to the unit-holders in the scheme shall be assets of the scheme and be subject to and be dealt with by the management company in accordance with the trusts created under the scheme.

(2) Subsection (1) shall not apply to the sale by a management company of units of a unit trust scheme purchased by it on its own account to the extent that the Bank may specify in a condition imposed by it under section 5 .

(3) A management company which contravenes the provisions of subsection (1) shall be guilty of an offence.

Obligation on management companies under unit trust schemes to purchase units.

12.—(1) Subject to Regulation 63 (as adapted by section 15 ) of the UCITS Regulations and subsection (2), whenever the unit-holder in an authorised unit trust scheme, or in a scheme the authorisation of which stands revoked under this Act, so requests, the management company under the scheme shall, as soon as may be, purchase such number of the units of the scheme held by the unit-holder as that person may specify at the price for the time being at which the management company purchases units of the scheme.

(2) Subsection (1) shall not apply to the extent that the Bank may specify in a condition imposed by it under section 5 .

(3) A management company which contravenes subsection (1) shall be guilty of an offence.

Prohibition of certain transactions and making of certain profits by management companies under unit trust schemes and by certain other persons.

13.—(1) Neither a management company under a unit trust scheme nor, where the management company is a body corporate, a subsidiary or a holding company of that body or a subsidiary of the holding company of that body or a director or person engaged in the management of such body or company, shall carry out transactions for itself or himself, or make a profit for itself or himself from transactions, in any assets held under the scheme.

(2) A management company or a trustee under a unit trust scheme (not being a unit trust scheme to which section 9 (2) applies) or, where the management company or trustee is a body corporate, a subsidiary or a holding company of that body, or a subsidiary of the holding company of that body, shall not—

(a) borrow money on behalf of the scheme for the purpose of acquiring securities or other property for the scheme, or

(b) lend money that is subject to the trusts of the scheme to a person to enable him to purchase units of the scheme, or

(c) mortgage or charge, or impose any other incumbrance on, any securities or other property subject to the trusts of the scheme.

(3) Subsection (1) or (2) shall not apply to the extent that the Bank may specify in a condition imposed by it under section 5 .

(4) Subsection (2) shall not have effect with respect to a trustee under a unit trust scheme to which that subsection applies or, where such trustee is a body corporate, a subsidiary or a holding company of that body, or a subsidiary of the holding company of that body, until the day which is 3 months after the date of passing of this Act.

(5) A person who contravenes this section shall be guilty of an offence.

Liability of trustees under authorised unit trust schemes.

14.—(1) Any provision in the trust deed of an authorised unit trust scheme shall be void in so far as it would have the effect of exempting the trustee under the scheme from, or indemnifying him against, liability for breach of trust where, having regard to the provisions of the trust deed conferring on him any powers, authorities or discretions, he fails to show the degree of care and diligence required of him as trustee.

(2) Subsection (1) shall not invalidate—

(a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release; or

(b) any provision enabling such a release to be given—

(i) on the agreement thereto of a majority of unit-holders holding not less than 75 per cent. in value of the units in issue of the unit trust scheme concerned present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose, and

(ii) either with respect to specific acts or omissions or on the trustee dying or ceasing to act.

(3) Subsection (1) shall not operate—

(a) to invalidate any provision in force on the 15th day of June, 1973, so long as any person then entitled to the benefit of that provision or afterwards given the benefit thereof under subsection (4) remains a trustee of the deed in question; or

(b) to deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him while any such provision was in force.

(4) While any trustee of a trust deed remains entitled to the benefit of a provision saved by subsection (3), the benefit of that provision may be given either—

(a) to all trustees of the deed, present and future; or

(b) to any named trustee or proposed trustees thereof;

by a resolution passed by a majority of unit-holders holding not less than 75 per cent. in value of the units in issue of the unit trust scheme concerned present in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose in accordance with the provisions of the deed or, if the deed makes no provision for summoning meetings, a meeting summoned for the purpose in any manner approved by the High Court.

Adaptation of certain provisions of UCITS Regulations.

15.—(1) Regulations 63, 75 to 83 and 99 to 105 of the UCITS Regulations shall apply to an authorised unit trust scheme as they apply to the bodies to which those Regulations relate subject to the following modifications and any other necessary modifications—

(a) a reference in those Regulations to a term or expression specified in the second column of the Table to this section at any reference number shall be construed, where the context admits, as a reference to the term or expression specified in the third column of the said Table at that reference number, and

(b) references to cognate terms or expressions in those Regulations shall be construed accordingly;

(c) references to—

(i) “the articles” and “the Directive” in those Regulations, and

(ii) the words “and the other information provided for in Annex B to these Regulations” in Regulation 77 and the first sentence of Regulation 78 of those Regulations,

shall be disregarded and the said Regulation 78 shall have effect as if there were inserted after “the figures”, “in the half-yearly report”; and

(d) Regulation 105 of those Regulations shall have effect as if there were inserted after “revokes or refuses to revoke an authorisation”, “or replaces a management company or trustee under a unit trust scheme”.

(2) In subsection (1) “authorised unit trust scheme” includes a scheme the authorisation of which stands revoked under Regulation 102 (as adapted by this section) of the UCITS Regulations.

TABLE

Offences in relation to certain bodies.

16.—Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent or approval of, or to have been facilitated by any wilful neglect on the part of any person being a director, manager, secretary, member of any committee of management or other controlling authority of such body or official of such body, that person shall also be guilty of an offence.

Offences under provisions of this Act and UCITS Regulations.

17.—A person who contravenes any provision of this Act or of the UCITS Regulations (as adapted by section 15 ) and for which contravention no offence is created by any other provision of this Act shall be guilty of an offence.

Penalties.

18.—(1) A person guilty of an offence under this Act shall be liable—

(a) on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both such fine and imprisonment, or

(b) on conviction on indictment to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 5 years or to both such fine and imprisonment,

and, if the contravention in respect of which he is convicted of an offence under this Act is continued after the conviction, he shall be guilty of a further offence on every day on which the contravention continues and for each such offence he shall be liable on summary conviction to a fine not exceeding £250 or, on conviction on indictment, to a fine not exceeding £1,000.

(2) Summary proceedings in relation to an offence under this Act may be brought and prosecuted by the Director of Public Prosecutions or the Bank.

(3) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851 , summary proceedings for an offence under this Act may be instituted within 3 years from the date of the offence.

Expenses of Minister.

19.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Repeal of Unit Trusts Act, 1972 , and consequential provisions.

20.—(1) The Act of 1972 is hereby repealed.

(2) Any unit trust scheme which, immediately before the passing of this Act, was a registered unit trust scheme under the Act of 1972 shall be deemed to be an authorised unit trust scheme and the provisions of this Act shall, subject to subsection (3), apply, accordingly, to such scheme.

(3) Section 8 (2) shall not have effect with respect to a unit trust scheme referred to in subsection (2) until the day which is 3 months after the date of the passing of this Act.

(4) The Minister and the registrar of companies shall, on the passing of this Act, to such extent as may be required by the Bank, transfer all documents and records relative to unit trust schemes registered under the Act of 1972 in their possession to the Bank.

Short title.

21.—This Act may be cited as the Unit Trusts Act, 1990.

¹O.J. No. L375, 31.12.85, p.3.

²O.J. No. L100, 19.4.88, p.31.