Credit Union and Co-operation with Overseas Regulators Act 2012
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Amendment to Central Bank Reform Act 2010. |
69.— The Central Bank Reform Act 2010 is amended— | |
(a) in section 3 by inserting the following definitions: | ||
“ ‘authorised officer’ means a person appointed by the Bank under Part 5 to be an authorised officer; | ||
‘financial services legislation’ means— | ||
(a) the designated enactments, | ||
(b) the designated statutory instruments, and | ||
(c) the Central Bank Acts 1942 to 2012 and statutory instruments made under those Acts;”, | ||
and | ||
(b) by inserting the following after section 53: | ||
“PART 4 | ||
Overseas Regulators | ||
Co-operation with overseas regulators. | ||
54.— (1) In this section ‘overseas regulator’ means an authority in a jurisdiction other than that of the State duly authorised to perform functions similar to any one or more of the statutory functions of the Bank. | ||
(2) At the request of an overseas regulator to do so in relation to any matter, the Bank may— | ||
(a) require information on the matter about which the Bank has required or could require the provision of information or the production of documents under any provision of financial services legislation, or | ||
(b) authorise one or more than one authorised officer to exercise any of his or her powers for the purposes of investigating the matter. | ||
(3) In deciding whether or not to exercise any of its powers under subsection (2), the Bank may take into account in particular: | ||
(a) whether in the country or territory of the overseas regulator, corresponding assistance would be given to an authority duly authorised in the State to perform functions corresponding to functions exercised by the overseas regulator; | ||
(b) whether the case concerns the breach of a law, or other requirement, which has no close parallel in the State or involves the assertion of a jurisdiction not recognised by the State; | ||
(c) the seriousness of the case and its importance to persons in the State; | ||
(d) whether it is otherwise appropriate in the public interest to give the assistance sought. | ||
(4) The Bank may decide that it will not exercise any of its powers under subsection (2) unless the overseas regulator undertakes to make such contribution towards the cost of such exercise as the Bank considers appropriate. | ||
(5) Subsections (3) and (4) do not apply if the Bank considers that the exercise of its power is necessary to comply with any obligation created or arising by or under the Treaties governing the European Union. | ||
(6) If the Bank authorises an authorised officer for the purposes of subsection (2)(b), the Bank may direct the authorised officer to permit a representative of the overseas regulator to attend, and take part in, any interview conducted for the purposes of the investigation of the matter concerned. | ||
(7) A direction under subsection (6) is not to be given unless the Bank is satisfied that any information obtained by an overseas regulator as a result of the interview will be subject to obligations of non-disclosure of information similar to those imposed on the Bank in section 33AK of the Act of 1942. | ||
(8) A person shall not be required for the purposes of the exercise of any power under this section to answer any question tending to incriminate the person. | ||
PART 5 | ||
Authorised Officers | ||
Definitions (Part 5). | ||
55.— (1) In this Part— | ||
‘agent’, in relation to a person to whom this Part applies, includes a past as well as a present agent and includes the person’s banker, accountant, solicitor, auditor and financial or other adviser, whether or not a person to whom this Part applies; | ||
‘authorisation’ means an authorisation, licence or any other permission required to carry on business as a regulated financial service provider granted by the Bank pursuant to any provision of financial services legislation, and includes registration; | ||
‘customer’, in relation to a regulated financial service provider, means— | ||
(a) any person to whom the regulated financial service provider provides or offers financial services, or | ||
(b) any person who requests the provision of financial services from the regulated financial service provider, | ||
and includes a potential customer and a former customer; | ||
‘person to whom this Part applies’ shall be read in accordance with section 56; | ||
‘prescribed contravention’ has the same meaning as in section 33AN of the Act of 1942; | ||
‘premises’ includes vessel, aircraft, vehicle and any other means of transport, as well as land and a building and any other fixed or moveable structure; | ||
‘regulated market’ has the same meaning as in Regulation 3 of the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60 of 2007 ); | ||
‘related undertaking’, in relation to a person (‘the first-mentioned person’), means— | ||
(a) if the first-mentioned person is a company, another company that is related within the meaning of section 140(5) of the Companies Act 1990 , | ||
(b) a partnership of which the first-mentioned person is a member, | ||
(c) if the businesses of the first-mentioned person and another person have been so carried on that the separate business of each of them, or a substantial part thereof, is not readily identifiable, that other person, | ||
(d) if the decision as to how and by whom the businesses of the first-mentioned person and another person shall be managed can be made either by the same person or by the same group of persons acting in concert, that other person, | ||
(e) a person who performs a specific and limited purpose by or in connection with the business of the first-mentioned person, or | ||
(f) if provision is required to be made for the first-mentioned person and another person in any consolidated accounts compiled in accordance with Seventh Council Directive 83/349/EEC of 13 June 1983 1 , that other person. | ||
(2) References in this Part to a regulated financial service provider, or a related undertaking, shall, unless the context otherwise requires, be read as including a person who was a regulated financial service provider, or a related undertaking, at the relevant time. | ||
Persons to whom this Part applies. | ||
56.— (1) The following are persons to whom this Part applies (including persons outside the State): | ||
(a) a regulated financial service provider; | ||
(b) a person who has applied for an authorisation but whose application has not been determined; | ||
(c) a person whom the Bank reasonably believes is or was a regulated financial service provider, or is or was acting as or claiming or holding himself or herself out to be a regulated financial service provider; | ||
(d) a person who is or was, or whom the Bank reasonably believes, is or was, without an authorisation, providing a financial service in respect of which an authorisation is required; | ||
(e) a related undertaking of any of the persons referred to in paragraph (a), (b), (c) or (d); | ||
(f) any other person whom the Bank reasonably believes may possess information about a person referred to in paragraph (a), (b), (c), (d) or (e); | ||
(g) any person whom the Bank reasonably believes may possess information about a financial product or investment admitted to trading or which is to be admitted to trading under the rules and systems of a regulated market. | ||
(2) The duty imposed by this Part to produce or provide any information, extends to— | ||
(a) a person who is in relation to a person to whom this Part applies— | ||
(i) an administrator within the meaning of section 1(1) of the Insurance (No. 2) Act 1983 , | ||
(ii) an administrator within the meaning of section 2 of the Investor Compensation Act 1998 , | ||
(iii) a person appointed as an administrator of a credit union by virtue of section 137 of the Credit Union Act 1997 or appointed to act as a provisional administrator of a credit union by virtue of section 138 of that Act, | ||
(iv) a special manager appointed pursuant to the Credit Institutions (Stabilisation) Act 2010 , | ||
(v) an examiner, liquidator, receiver, official assignee, or | ||
(vi) in respect of a person outside the State, a person corresponding to any of the persons who come within subparagraphs (i) to (v), | ||
and | ||
(b) a person who— | ||
(i) is or has been an officer or employee or agent of any person to whom this Part applies, or | ||
(ii) appears to the Bank or the authorised officer to have the information in his or her possession or under his or her control. | ||
Appointment of authorised officers. | ||
57.— (1) For the purposes of obtaining any information necessary for the performance by the Bank of its functions under financial services legislation relating to the proper and effective regulation of financial service providers, the Bank may appoint any of its officers or employees or other suitably qualified persons to be authorised officers and to exercise any of the powers conferred by this Part. | ||
(2) The Bank may revoke any appointment made by it under subsection (1). | ||
(3) An appointment or revocation under this section shall be in writing. | ||
(4) A person’s appointment by the Bank as an authorised officer ceases on the earlier of— | ||
(a) the revocation by the Bank of the appointment, | ||
(b) in a case where the appointment is for a specified period, the expiration of the period, | ||
(c) on the person’s resignation from the appointment, and | ||
(d) in the case where the person is an officer or employee of the Bank— | ||
(i) on the resignation of the person as an officer or employee of the Bank, or | ||
(ii) on the termination of the person's employment with the Bank, or when the person’s term of office ceases, for any reason. | ||
(5) In this section ‘suitably qualified person’ means any person (other than an officer or employee of the Bank) who, in the opinion of the Bank, has the qualifications and experience necessary to exercise the powers conferred on an authorised officer by this Part. | ||
Warrant of appointment. | ||
58.— Every authorised officer appointed by the Bank shall be furnished with a warrant of his or her appointment, and when exercising a power conferred by this Part shall produce such warrant or a copy of it, together with a form of personal identification, for inspection if requested to do so by a person affected by the exercise of the power. | ||
Power of authorised officer to enter premises. | ||
59.— (1) Subject to subsection (2), an authorised officer may at all reasonable times enter any premises— | ||
(a) which the authorised officer has reasonable grounds to believe are or have been used for, or in relation to, the business of a person to whom this Part applies, or | ||
(b) at, on or in which the authorised officer has reasonable grounds to believe that records relating to the business of a person to whom this Part applies are kept. | ||
(2) An authorised officer shall not enter a dwelling, otherwise than— | ||
(a) with the consent of the occupier, or | ||
(b) pursuant to a warrant under section 61. | ||
Powers of authorised officer. | ||
60.— (1) An authorised officer may do any one or more of the following: | ||
(a) search and inspect premises entered under section 59 or pursuant to a warrant under section 61; | ||
(b) require any person to whom this Part applies who apparently has control of, or access to, records, to produce the records; | ||
(c) inspect records so produced or found in the course of searching and inspecting premises; | ||
(d) take copies of or extracts from records so produced or found; | ||
(e) subject to subsection (3), take and retain records so produced or found for the period reasonably required for further examination; | ||
(f) secure, for later inspection, any records produced or found and any data equipment, including any computer, in which those records may be held; | ||
(g) secure, for later inspection, premises entered under section 59 or pursuant to a warrant under section 61, or any part of such premises, for such period as may reasonably be necessary for the purposes of the exercise of his or her powers under this Part, but only if the authorised officer considers it necessary to do so in order to preserve for inspection records that he or she reasonably believes may be kept there; | ||
(h) require any person to whom this Part applies to answer questions and to make a declaration of the truth of the answers to those questions; | ||
(i) require any person to whom this Part applies to provide an explanation of a decision, course of action, system or practice or the nature or content of any records; | ||
(j) require a person to whom this Part applies to provide a report on any matter about which the authorised officer reasonably believes the person has relevant information; | ||
(k) require that any information given to an authorised officer under this Part is to be certified as accurate and complete by such person or persons and in such manner as the Bank or the authorised officer may require. | ||
(2) Where records are not in legible form, an authorised officer, in the exercise of any of his or her powers under this Part, may— | ||
(a) operate any data equipment, including any computer, at the premises which is being searched or cause any such data equipment or computer to be operated by a person accompanying the authorised officer, and | ||
(b) require any person who appears to the authorised officer to be in a position to facilitate access to the records stored in any data equipment or computer or which can be accessed by the use of that data equipment or computer to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it including— | ||
(i) producing the records to the authorised officer in a form in which they can be taken and in which they are, or can be made, legible and comprehensible, | ||
(ii) giving to the authorised officer any password necessary to make the records concerned legible and comprehensible, or | ||
(iii) otherwise enabling the authorised officer to examine the records in a form in which they are legible and comprehensible. | ||
(3) Where the Bank or an authorised officer proposes to retain, pursuant to this section, any records taken by the authorised officer under subsection (1) for a period longer than 14 days after the date on which the records are taken, the Bank or the authorised officer shall, before the end of that period of 14 days, or such longer period with the consent of the person hereafter mentioned, furnish, on request, a copy of the records to the person who it appears to the Bank or the authorised officer, but for the exercise of the powers under this section, is entitled to possession of it. | ||
(4) A person to whom this Part applies shall give to an authorised officer such assistance as the authorised officer may reasonably require and make available to the authorised officer such reasonable facilities as are necessary for the authorised officer to exercise his or her powers under this Part including such facilities for inspecting and taking copies of any records as the authorised officer reasonably requires. | ||
(5) Subject to any warrant issued under section 61, an authorised officer may be accompanied, and assisted in the exercise of the officer’s powers under this Part, by such other authorised officers, members of the Garda Síochána or other persons as the authorised officer reasonably considers appropriate. | ||
Warrant required to enter premises. | ||
61.— (1) Without prejudice to the powers conferred on an authorised officer by or under any other provision of this Part, if a judge of the District Court is satisfied on the sworn information of the authorised officer that there are reasonable grounds for believing that records are to be found on, at or in any premises, the judge may issue a warrant authorising an authorised officer accompanied by such other authorised officers or members of the Garda Síochána as may be necessary, at any time or times, within the period of validity of the warrant, on production, if so requested, of the warrant— | ||
(a) to enter the premises specified in the warrant, if need be by reasonable force, and | ||
(b) to exercise the powers conferred on authorised officers by this Part or such of those powers as are specified in the warrant. | ||
(2) The period of validity of a warrant shall be 28 days from its date of issue. | ||
(3) An application for a warrant under this section shall be made to a judge of the District Court in the district court district in which the premises concerned are situate. | ||
Authorised officer may attend meetings. | ||
62.— (1) An authorised officer may attend any meeting relating to the business of a regulated financial service provider if the authorised officer considers that it is necessary to attend in order to assist the Bank in the performance of any of its functions under financial services legislation. | ||
(2) The attendance of an authorised officer pursuant to subsection (1) at a meeting referred to in that subsection does not in any circumstances limit the powers of the authorised officer or of the Bank. | ||
Production of record subject to legal professional privilege not required. | ||
63.— Nothing in this Part shall operate to confer any right to production of, or access to, any record subject to legal professional privilege. | ||
Disclosure or production not to be treated as breach or to affect lien. | ||
64.— (1) The disclosure or production of any record or other information by a person under this Part shall not be treated, for any purpose, as a breach of any restriction under any enactment or rule of law on disclosure or production by the person or any other person on whose behalf the record or other information is disclosed or produced. | ||
(2) Where a person from whom production of a record is required under this Part claims a lien on the record, the production of it shall be without prejudice to the lien. | ||
Failure to comply with a requirement. | ||
65.— (1) If any person to whom this Part applies fails or refuses to comply with a requirement under this Part the authorised officer may certify the failure or refusal under his or her hand to the High Court. | ||
(2) When an authorised officer certifies a failure or refusal referred to in subsection (1) to the High Court, the High Court may inquire into the case and may make such order (including interim or interlocutory orders) or direction as the High Court thinks fit, after hearing— | ||
(a) any witnesses who may be produced against or on behalf of the person concerned, and | ||
(b) any statement which may be offered in defence. | ||
Offence of obstruction or provision of false information. | ||
66.— (1) A person commits an offence if he or she— | ||
(a) obstructs or impedes an authorised officer in the exercise of any of his or her powers under this Part, whether or not by virtue of a warrant issued under section 61, | ||
(b) without reasonable excuse, does not comply with a requirement of an authorised officer in the exercise of any of those powers, | ||
(c) in purported compliance with such a requirement, gives information to the authorised officer that the person knows to be false or misleading in a material respect, or | ||
(d) falsely represents himself or herself to be an authorised officer. | ||
(2) A person who commits an offence under this section 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 €250,000 or imprisonment for a term not exceeding 5 years or both. | ||
(3) A person does not commit an offence of failing to comply with a requirement referred to in subsection (1)(b) unless, when the requirement was made, the person was warned that a failure to comply is an offence. | ||
(4) If a person refuses to answer a question asked of him or her or to comply with any other requirement made, under this Part, on the grounds that the answer or compliance with the requirement might tend to incriminate the person and the person is informed of his or her obligation to answer the question or to comply with the requirement, the person shall not refuse to answer the question or to comply with the requirement but the answer given or information provided on that occasion shall not be admissible as evidence in criminal proceedings against the person other than proceedings against him or her under this section.”. | ||