Investment Intermediaries Act , 1995

PART I Preliminary and General

1 Short title and commencement.

1.—(1) This Act may be cited as the Investment Intermediaries Act, 1995.

(2) This Act shall come into operation on such day or days as may be appointed by order or orders made by the Minister, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions of this Act.

2 Interpretation.

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

“approved professional body” has the meaning assigned to it by section 55 of this Act;

“associated undertaking” means an associated undertaking within the meaning of Regulation 34 of the European Communities (Companies: Group Accounts) Regulations, 1992 (S.I. 201 of 1992);

“authorised investment business firm” means an investment business firm which has been authorised by a supervisory authority under section 10 or 13 of this Act or which is deemed to be authorised under Part IV or Part VII of this Act;

“authorisation” means an authorisation granted under section 10 or 13 of this Act, or an authorisation under Part IV or Part VII, unless otherwise specified;

“authorised officer” means a person authorised under section 64 of this Act;

“the Bank” means the Central Bank of Ireland;

“certified person” has the meaning assigned to it by section 55 of this Act;

“the Commission” means the Commission of the European Communities;

“Companies Acts” means the Companies Acts, 1963 to 1990;

“competent authority” means a competent authority in a Member State, for the purposes of Council Directive 77/780/EEC of 12 December, 1977[^(1)], as amended by Council Directive 89/646/EEC of 15 December, 1989[^(2)], or for the purposes of Council Directive No. 93/6/EEC of 15 March, 1993[^(3)], or for the purposes of Council Directive No. 93/22/EEC of 10 May, 1993(3);

“the Court” means the High Court;

“credit institution” means a credit institution within the meaning of Article 1 of Council Directive 77/780/EEC of 12 December, 1977^(1) as amended by Council Directive 89/646/EEC of 15 December, 1989(2) but does not include the institutions referred to in Article 2(2) of that Directive;

“deposit” means a deposit with a credit institution and shall be construed as including a shareholding in as well as a deposit with a building society;

“deposit agent” means any person who holds an appointment in writing from a single credit institution enabling him to receive deposits on behalf of that institution and prohibiting him from acting in a similar capacity on behalf of another credit institution;

“deposit broker” means any person who brings together with credit institutions persons seeking to make deposits in return for a fee, commission or other reward;

“director” includes any person occupying the position of director by whatever name called and any person who effectively directs or has a material influence over the business of an authorised investment business firm and includes a shadow director within the meaning of the Companies Act, 1990;

“former authorised investment business firm” means an authorised investment business firm whose authorisation has been revoked;

“functions” includes powers and duties;

“home Member State” means—

(a) where the investment business firm or proposed investment business firm is a natural person, the Member State in which the head office of that person is situated, or

(b) where the investment business firm or proposed investment business firm is a legal person, the Member State in which its registered office is situated or, if under its national law it has no registered office, the Member State in which its head office is situated;

“host Member State” means the Member State in which an investment business firm has a branch or provides services;

“incidental manner” has the meaning assigned to it by section 55 of this Act;

“indirect acquisition” shall be construed in accordance with Council Directive 93/22/EEC of 10 May, 1993[^(1)];

“indirect disposal” shall be construed in accordance with Council Directive 93/22/EEC of 10 May, 1993[^(1)];

“indirect shareholders” shall be construed in accordance with Council Directive 93/22/EEC of 10 May, 1993[^(1)];

“indirect subsidiary” shall be construed in accordance with Council Directive 93/22/EEC of 10 May, 1993[^(1)];

“investment advice” means the giving, or offering or agreeing to give, to any person, advice on the purchasing, selling, subscribing for or underwriting of an investment instrument or on the making of a deposit or on the exercising of any right conferred by an investment instrument to acquire, dispose of, underwrite or convert an investment instrument or deposit or the giving, or offering or agreeing to give, to any person, advice on choice of a person providing investment business services, but does not include any of the following:

(a) advice given in a newspaper, journal, magazine or other publication, including electronic publications, where the principal purpose of the publication taken as a whole is not to lead persons to invest in any particular investment instrument or deposit or to deal with any particular provider of investment business services,

(b) advice given in a lecture, seminar or similar event or series of such events, where the principal purpose of the event or events taken as a whole is not to lead persons to invest in any particular investment instrument or deposit or to deal with any particular provider of investment business services and where persons engaged in the organisation or presentation of such events will earn no remuneration, commission, fee or other reward as a result of any particular decision, by a person attending such event and arising out of such attendance, in relation to investment instruments or deposits or in relation to the choice of a person providing investment business services,

(c) advice given in sound or television broadcasts where the principal purpose of such broadcasts taken as a whole is not to lead persons to invest in any particular investment instrument or deposit or to deal with any particular provider of investment business services,

(d) advice to undertakings on capital structure, industrial strategy and related matters and advice relating to mergers and the purchase of undertakings,

(e) advice given by persons in the course of the carrying on of any profession or business not otherwise constituting the business of an investment business firm, where the giving of such advice is a necessary part of other advice or services given in the course of carrying on that profession or business, and where the giving of investment advice is not remunerated or rewarded separately from such other advice or services;

“investment business firm” means any person, other than a member firm within the meaning of the Stock Exchange Act, 1995, who provides one or more investment business services or investment advice to third parties on a professional basis and for this purpose where an individual provides an investment business service and where that service is carried on solely for the account of and under the full and unconditional responsibility of an investment business firm or an insurance undertaking or a credit institution that activity shall be regarded as the activity of the investment business firm, insurance undertaking or credit institution itself;

“investment business services” includes all or any of the following services:

(a) receiving and transmitting, on behalf of investors, of orders in relation to one or more investment instrument;

(b) execution of orders in relation to one or more investment instrument, other than for own account;

(c) dealing in one or more investment instrument for own account;

(d) managing portfolios of investment instruments or deposits in accordance with mandates given by investors on a discretionary client-by-client basis where such portfolios include one or more investment instrument or one or more deposit;

(e) underwriting in respect of issues of one or more investment instrument or the placing of such issues or both;

(f) acting as a deposit agent or deposit broker;

(g) the administration of collective investment schemes, including the performance of valuation services or fund accounting services or acting as transfer agents or registration agents for such funds;

(h) custodial operations involving the safekeeping and administration of investment instruments;

(i) acting as a manager of a designated investment fund within the meaning of the Designated Investment Funds Act, 1985;

“investment instruments” includes—

(a) transferable securities including shares, warrants, debentures including debenture stock, loan stock, bonds, certificates of deposits and other instruments creating or acknowledging indebtedness issued by or on behalf of any body corporate or mutual body, government and public securities, including loan stock, bonds and other instruments creating or acknowledging indebtedness issued by or on behalf of a government, local authority or public authority, bonds or other instruments creating or acknowledging indebtedness, certificates representing securities,

(b) non-transferable securities creating or acknowledging indebtedness issued by or on behalf of a government, local authority or public authority,

(c) units or shares in undertakings for collective investments in transferable securities within the meaning of European Communities (Undertakings for Collective Investments in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989), and any subsequent amendments thereto, units in a unit trust, shares in an investment company, capital contributions to an investment limited partnership,

(d) financial futures contracts, including currency futures, interest rate futures, bond futures, share index futures and comparable contracts,

(e) commodity futures contracts,

(f) forward interest rate agreements,

(g) agreements to exchange payments based on movements in interest rates, currency exchange rates, commodities, share indices and other financial instruments,

(h) sale and repurchase and reverse repurchase agreements involving transferable securities,

(i) agreements for the borrowing and lending of transferable securities,

(j) certificates or other instruments which confer all or any of the following rights, namely—

(i) property rights in respect of any investment instrument referred to in paragraph (a) of this definition; or

(ii) any right to acquire, dispose of, underwrite or convert an investment instrument, being a right to which the holder would be entitled if he held any such investment to which the certificate or instrument relates; or

(iii) a contractual right (other than an option) to acquire any such investment instrument otherwise than by subscription,

(k) options including—

(i) options in any instrument in paragraphs (a) to (j) of this definition, or

(ii) currency, interest rate, commodity and stock options including index option contracts,

(l) hybrid instruments involving two or more investment instruments,

and includes any investment instrument in dematerialised form, but this definition shall not be construed as applying to

(I) any instrument acknowledging or creating indebtedness for, or for money borrowed to defray, the consideration payable under a contract for the supply of goods or services; or

(II) a cheque or other similar bill of exchange, a banker's draft or a letter of credit; or

(III) a banknote, a statement showing a balance in a current, deposit or savings account or (by reason of any financial obligation contained in it) to a lease or other disposition of property, or an insurance policy;

“investment limited partnership” has the meaning assigned to it by the Investment Limited Partnerships Act, 1994;

“Member State” means a Member State of the European Communities;

“the Minister” means the Minister for Finance;

“officer”, in relation to an investment business firm, means a director, chief executive, manager or secretary, by whatever name called and, in relation to an offence, also includes any person who purports to act as an officer of the said investment business firm;

“Official Assignee” has the meaning assigned to it by section 3 of the Bankruptcy Act, 1988;

“prescribed” means prescribed by Regulations made by the Minister and cognate words shall be construed accordingly;

“product producer” means a firm, institution, collective undertaking or investment company of the kind referred to in section 26(1) (i) to (vi) of this Act ;

“proposed investment business firm” means a person who is seeking authorisation from a supervisory authority to be an authorised investment business firm;

“qualifying capital interest” shall have the meaning assigned to it in Regulation 35 of the European Communities (Companies: Group Accounts) Regulations, 1992 (S.I. No. 201 of 1992), and any subsequent amendments thereto;

“qualifying holding” means a direct or indirect holding of shares or other interest in a proposed investment business firm or an authorised investment business firm which represents 10 per cent, or more of the capital or of the voting rights, or any direct or indirect holding of less than 10 per cent, which, in the opinion of a supervisory authority, makes it possible to control or exercise a significant influence over the management of the proposed investment business firm or authorised investment business firm in which a holding subsists;

“qualifying shareholder” means a person who has or controls a qualifying holding ;

“regulated market” means a market within the meaning of Council Directive 93/22/EEC of 10 May, 1993[^(1)] ;

“related undertakings” means—

(a) companies related within the meaning of section 140 (5) of the Companies Act, 1990, and subsequent amendments thereto, or

(b) undertakings where the business of those undertakings has been so carried on that the separate business of each undertaking, or a substantial part thereof, is not readily identifiable, or

(c) undertakings where the decision as to how and by whom each shall be managed can be made either by the same person or by the same group of persons acting in concert;

“restricted activity investment product intermediary” has the meaning assigned to it by section 26 of this Act;

“statutory functions”, in relation to the Bank, means its functions—

(a) under the Central Bank Acts, 1942 to 1989, and any enactment amending those Acts,

(b) imposed by virtue of the ACC Bank Act, 1992 (Section 4) Regulations, 1992, (S.I. No. 373 of 1992), the ICC Bank Act, 1992 (Section 3) Regulations, 1993, (S.I. No. 24 of 1993), the European Communities (Licensing and Supervision of Credit Institutions) Regulations, 1992, (S.I. No. 395 of 1992), or the European Communities (Consolidated Supervision of Credit Institutions) Regulations, 1992, (S.I. No. 396 of 1992),

(c) under the Unit Trusts Act, 1990,

(d) under the Building Societies Act, 1989,

(e) under the Companies Act, 1990,

(f) under the Trustee Savings Banks Act, 1989,

(g) under the Investment Limited Partnerships Act, 1994,

(h) under the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989), and any instruments amending that instrument,

(i) under the Stock Exchange Act, 1995,

(j) under this Act, and

(k) under any other enactment or instrument made under an enactment;

“subsidiary” means a subsidiary undertaking within the meaning of Regulation 4 of the European Communities (Companies: Group Accounts) Regulations, 1992 (S.I. No. 201 of 1992) ;

“supervisory authority” has the meaning assigned to it by section 4 of this Act;

“undertaking” means a body corporate, a partnership, an unincorporated body of persons or a sole trader.

(2) References in this Act to books, records or other documents, or to any of them, shall be construed as including any document or information kept in a non-legible form (whether stored electronically or otherwise) which is capable of being reproduced in a legible form and all the electronic or other automatic means, if any, by which such document or information is so capable of being reproduced and to which the person, whose books, records or other documents (as so construed) are inspected for the purposes of this Act, has access.

(3) References in this Act to “competence” in relation to any director or manager means competence in respect of matters in which such director or manager concerned would be expected to be competent in the discharge of his professional responsibilities.

(4) Where an investment business firm is constituted as an unincorporated body of persons, in this Act—

(a) references to “memorandum and articles of association” or to “memorandum of association” or “articles of association” shall be construed as references to the partnership agreement or other constitutional document of the body of persons concerned,

(b) references to “director” shall be construed as references to every member, officer, partner or other person holding any proprietary voting or other interest in the body of persons concerned and includes any person who effectively directs or has a material influence over the business of the body of persons concerned, and

(c) references to “shareholder” and “qualifying shareholder ” shall be construed as references to any partner, member or other person holding any proprietary, voting or other interest in the body of persons concerned.

(5) In this Act, references to an “employee” and cognate words shall be construed to include references to a person employed under a contract of service or for service and references to a person employed otherwise than under a contract of service or for service.

(6) Notwithstanding subsection (1) of this section, investment business firm shall not include—

(a) a person who provides investment business services only,

(i) to undertakings of which it is a subsidiary or its own subsidiaries or other subsidiaries of the same parent undertaking, or

(ii) where those services consist exclusively in the administration of employee equity participation schemes, or

(iii) in both of these circumstances, or

(b) the Bank or the National Treasury Management Agency or the Minister for Finance, or

(c) firms which provide investment business services consisting exclusively in dealing for their own account on futures or options markets or which deal for the account of other members of those markets or make prices for them and which are guaranteed by clearing members of the same markets, and where responsibility for ensuring the performance of contracts entered into by such firms is assumed by clearing members of the same market, or

(d) An Post (including any postmaster acting on its behalf) or the Prize Bond Company Ltd. or any successor to the Prize Bond Company Ltd. as operator of the Prize Bond scheme, when any of the bodies or persons referred to in this subparagraph is acting as an agent of or otherwise for that purpose on behalf of the Minister or the National Treasury Management Agency, or

(e) insurance undertakings as defined in Article 1 of Council Directive 73/239/EEC[^(1)] or Article 1 of Council Directive 79/267/EEC[^(2)] or undertakings carrying on the reinsurance and retrocession activities referred to in Council Directive 64/25/EEC[^(3)], or

(f) collective investment undertakings and the depositaries and managers of such undertakings, where they are already subject to regulation by the Bank in the State under its statutory functions, or

(g) persons whose main business is trading in commodities amongst themselves or with producers or professional users of such products and who provide investment business services only for such producers or professional users to the extent necessary for their main business, or

(h) credit institutions which provide investment business services or investment advice and which, in so doing, do not exceed the terms of authorisations under Directive No. 77/780/EEC of 12 December 1977[^(4)] as amended by Council Directive 89/646/EEC of 15 December 1989[^(5)] as amended and extended from time to time.

(7) Notwithstanding subsection (1) of this section, or any provision of Part VII of this Act, a solicitor in respect of whom a practising certificate (within the meaning of the Solicitors Acts, 1954 to 994) is in force shall not be an investment business firm by virtue f the provision in an incidental manner of investment business services or investment advice.

(8) (a) Notwithstanding subsection (7) of this section, the Minister may prescribe that solicitors in respect of whom such practising certificates are in force shall be investment business firms for the purposes of this Act whenever they provide investment business services or investment advice.

(b) The Minister may make a regulation under subsection (8) (a) of this section only where he has formed the view that—

(i) the regulatory regime enforced by the Law Society of Ireland in respect of practising solicitors providing investment business services or investment advice in an incidental manner does not provide sufficiently for the proper and orderly regulation and supervision of such solicitors and the protection of investors, or that the powers of the Law Society of Ireland under its rules or otherwise, or its practice in relation to the supervision of solicitors, are inadequate for this purpose, and

(ii) that it is in the interests of the proper and orderly regulation and supervision of investment business services and investment advice in general and the protection of investors, that such an order be made.

(c) The Minister shall not make a regulation under this subsection unless he has first consulted the Law Society of Ireland, the Bank, the Minister for Justice and the Minister for Enterprise and Employment.

(d) A regulation under this subsection may prescribe that upon the coming into operation of such a regulation, the Law Society of Ireland shall be an approved professional body for the purposes of this Act, whether on an interim basis for such period as the Minister may prescribe or otherwise.

(e) For the purposes of forming a view, under this section, the Minister may appoint any person who the Minister believes is suitably qualified for the purpose to carry out such inquiries or make such inspections as the Minister may request in relation to the operations of the Law Society of Ireland, and the Law Society of Ireland shall co-operate with any such inspection or inquiries, and disclose such information as the person appointed may request.

(f) Where the Law Society of Ireland refuses to co-operate with an inspection or inquiry or to disclose information requested under paragraph (e) of this subsection, the person appointed by the Minister may apply to the Court for an order and the Law Society of Ireland shall comply with any such order which the Court may make.

(g) The Bank may be a person appointed by the Minister for the purposes of paragraph (e) of this subsection.

3 Service of notices.

3.—(1) Where a notice, direction or other document is authorised or required by or under this Act or regulations made thereunder to be served on a person, it shall, unless otherwise specified in this Act, be addressed to him and shall be served on or given to him in one of the following ways—

(a) where it is addressed to him by name, by delivering it to him, or

(b) by leaving it at the address at which he ordinarily resides or, in a case in which an address for service has been furnished, at that address, or

(c) by sending it by ordinary prepaid post addressed to him at the address at which he ordinarily resides or, in a case in which an address for service has been furnished, at that address, or

(d) in the case of an officer or employee of an investment business firm whether authorised or otherwise, or a proposed investment business firm, by sending it to him by ordinary prepaid post addressed to him at the address of the principal office of that investment business firm or proposed investment business firm.

(2) Any such document may—

(a) in the case of an investment business firm whether authorised or otherwise or proposed investment business firm or any other body corporate, be served on the secretary or other employee or officers of that investment business firm or other body corporate, or

(b) in the case of a partnership, be served on any partner, or

(c) in the case of an unincorporated association other than a partnership, be served on any member of its governing body, or

(d) in the case of a sole trader, be served on the sole trader.

(3) Where a condition or requirement is to be imposed, or specification made, by a supervisory authority under this Act, in respect of more than one person, a supervisory authority may, where it considers it necessary to do so, give notice of such fact by way of publication of such conditions, requirements or specifications in the Iris Oifigiúil.

4 Supervisory authorities.

4.—(1) In this Act “supervisory authority” means the Minister for Enterprise and Employment for the purposes of regulating investment business firms of a type referred to in subsection (2) of this section and the Bank for the purposes of regulating investment business firms of a type referred to in subsection (3) of this section.

(2) The Minister for Enterprise and Employment shall be the supervisory authority for persons who in the course of their regular occupation do not provide any investment business service other than in relation to all or any of—

(a) units or shares in undertakings for collective investments in transferable securities within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989), and any subsequent amendments thereto,

(b) units in a unit trust,

(c) other collective investment scheme instruments,

(d) acting as a deposit agent or deposit broker,

(e) the transmission of orders for shares in a company listed on a stock exchange, or bonds so listed, or for prize bonds:

Provided such persons do not have or take discretionary control over client funds or investment instruments.

(3) The Bank shall be the supervisory authority for investment business firms not referred to in subsection (2) of this section.

(4) For the purposes of this section, discretionary control does not include the giving of instructions by an investment business firm to a product producer to switch a client's investment with the product producer to another investment with the same product producer where the investment business firm does not thereby receive funds of a client.

(5) Notwithstanding anything in this section, a supervisory authority may arrange with the other supervisory authority for the discharge of its functions under this Act in relation to particular investment business firms or proposed investment business firms or to classes of investment business firms or proposed investment business firms.

5 Amendment of definitions.

5.—The Minister may make regulations for the purposes of—

(a) amending definitions contained in this Act, or

(b) specifying areas in which the supervisory authorities may exchange information with other competent authorities,

where the Minister is of the opinion that it is necessary to do so arising out of a decision of the Council of the European Communities under Article 29 of Council Directive 93/22/EEC of 10 May 1993[^(1)].

6 Expenses.

6.—(1) The expenses incurred by the Minister and the Minister for Enterprise and Employment in the administration of this Act shall, to such extent as may be sanctioned by the Minister, be paid out of moneys provided by the Oireachtas.

(2) The expenses incurred by the Bank in the administration of this Act shall be paid out of the general fund of the Bank except where otherwise provided in this Act or any other enactment.

7 Laying of regulations before Houses of the Oireachtas.

7.—Every regulation made under this Act 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 has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

PART II Authorisation

8 Competent authority.

8.—The Bank and the Minister for Enterprise and Employment shall be the competent authorities in the State for—

(a) investment business firms for the purpose of Council Directive 93/22/EEC of 10 May 1993^(1), and

(b) authorised investment business firms for the purpose of Council Directive 93/6/EEC of 15 March 1993^(1).

9 Prohibition on acting as an authorised investment business firm.

9.—(1) It shall be an offence for a company registered in the State or any other person operating in the State to act as an investment business firm, or to claim or to hold themselves out to be an investment business firm, in the State or outside the State unless that person is acting under and within the terms of an authorisation to do so which authorisation has been given—

(a) by a supervisory authority under section 10 or 13 of this Act, or

(b) by a competent authority in another Member State, for the purpose of Council Directive 93/22/EEC of 10 May, 1993^(1) as amended or extended from time to time,

or that person is deemed to have been authorised under Part IV or Part VII of this Act.

(2) For the purposes of this section, an investment business firm shall not be regarded as operating within the State, where it is a firm which has no branch within the State and where—

(a) its head or registered office is in a state other than a Member State, or

(b) its head or registered office is in a Member State outside the State, and it is a firm which does not provide any investment business services in respect of which it is required to be authorised in its home Member State for the purposes of Council Directive 93/22/EEC of 10 May 1993[^(1)], or

(c) it is a firm which is authorised in a Member State outside the State, under Council Directive 93/22/EEC of 10 May 1993[^(1)], but which provides investment business services of a kind for which authorisation under that Directive is not available, when it is providing such services,

unless it is providing investment business services or investment advice to individuals in the State who do not themselves provide one or more investment business services or investment advice on a professional basis.

10 Grant of authorisation.

10.—(1) Subject to the provisions of this Act, a supervisory authority may grant or refuse to grant to any person applying to it under this section an authorisation to operate as an authorised investment business firm.

(2) The grant of an authorisation under subsection (I) of this section may be given unconditionally or it may be given subject to such conditions or requirements or both as the supervisory authority considers fit.

(3) Whenever a supervisory authority refuses to grant authorisation to a proposed investment business firm under this section it shall serve notice on the proposed investment business firm of its intention to refuse to authorise it and stating the reasons therefor and the proposed investment business firm may within 21 days of receipt of such notice appeal to the Court against the decision.

(4) An application for authorisation under subsection (I) of this section shall be in such form and contain such particulars as the supervisory authority shall specify from time to time and, without prejudice to the generality of the aforesaid, shall include such particulars or information as the supervisory authority may request in relation to:

(a) the type of business to be carried on or likely to be carried on by the proposed investment business firm;

(b) any person or persons having a qualifying shareholding or having control or ownership of the proposed investment business firm including any natural or legal person whose shareholding or other commercial relationship with the proposed investment business firm might influence the conduct of the proposed investment business firm to a material degree; and

(c) the memorandum of association and articles of association of the proposed investment business firm.

(5) A proposed investment business firm shall not be authorised by the supervisory authority under this section unless—

(a) it is a company incorporated by statute or under the Companies Acts, or is incorporated outside the State or is a company made under Royal Charter or it draws up a partnership agreement, where it is constituted as an unincorporated body of persons, if such an agreement does not already exist, or is a sole trader and the proposed investment business firm has made arrangements to ensure that its activities will be carried out in such a manner that the requirements of Article 3 (3) of Council Directive No. 93/22/EEC of 10 May 1993(1), are complied with,

(b) it satisfies the supervisory authority that, where applicable, the memorandum of association and articles of association of the proposed investment business firm contain sufficient provision so as to enable it to operate in accordance with this Act, and in accordance with any condition or requirement, or both, as the supervisory authority may impose,

(c) it has the minimum level of capital which shall be specified by the supervisory authority,

(d) it satisfies the supervisory authority as to the probity and competence of each of its directors and managers,

(e) it satisfies the supervisory authority as to the suitability of each of its qualifying shareholders,

(f) it satisfies the supervisory authority as to the organisational structure and management skills of the proposed investment business firm and that adequate levels of staff and expertise will be employed to carry out its proposed activities,

(g) it satisfies the supervisory authority that it has and will follow established procedures to enable the supervisory authority to be supplied with all information necessary for its supervisory functions and to enable the public to be supplied with any information which the supervisory authority may specify,

(h) it satisfies the supervisory authority that the organisation of its business structure is such that it and any of its associated or related undertakings, where appropriate and practicable, are capable of being supervised adequately by the supervisory authority,

(i) where the supervisory authority considers it appropriate, having regard to Council Directive No. 93/22/EEC of 10 May 1993[^(1)], it satisfies the supervisory authority that:

(I) where the proposed investment business firm is a natural person or a partnership, its head office and the place in which it actually carries on its business is in the State,

(II) where the proposed investment business firm is incorporated, its registered office and head office are in the State, or

(III) it is a branch of an investment business firm which has its head office or its registered office in a country which is not a Member State,

(j) it satisfies the supervisory authority as to its conduct of business, its financial resources and any other matters as the supervisory authority considers necessary in the interests of the proper and orderly regulation and supervision of authorised investment business firms or in the interests of the protection of investors.

(6) A supervisory authority may set out conditions or requirements or both in order to monitor the solvency of an authorised investment business firm which is constituted as an unincorporated body of persons or which is a natural person, including monitoring the solvency of its proprietors.

(7) A supervisory authority may impose conditions or requirements, from time to time, in respect of the level of capital to be maintained by an authorised investment business firm and where the supervisory authority is acting as a competent authority shall have regard to Council Directives 93/6/EEC of 15/03/93^(1) and 93/22/EEC of 10/05/93[^(1)].

(8) A supervisory authority may require that an appointment as a director of an authorised investment business firm or proposed investment business firm or to the post of chief executive or manager or post equivalent thereto, on or after the granting of an authorisation under this section, shall be subject to the prior approval in writing of the supervisory authority which said approval shall not be given unless the authorised investment business firm or proposed investment business firm satisfies the supervisory authority as to the probity and competence of the proposed appointee.

(9) The supervisory authority may direct an authorised investment business firm to alter its memorandum of association or articles of association in the interest of the proper and orderly regulation and supervision of investment business firms or the protection of investors or both.

(10) An authorisation granted under subsection (1) of this section by the supervisory authority shall specify the classes of investment business services which may be provided by the authorised investment business firm concerned and the authorisation may specify additional services which an authorised investment business firm may provide, including those set out in Annex C to Council Directive 93/22/EEC of 10 May 1993^(1) as amended or extended from time to time, and the supervisory authority may amend or vary the classes of investment business services or other services which may be so provided and such authorisation shall be taken as authorisation of the said authorised investment business firm for the purposes of the Council Directive.

(11) The supervisory authority may at any time prior to the grant or refusal of an authorisation request further information from the proposed investment business firm or may instruct an authorised officer to make such inquiries or carry out such investigations as may be necessary for the purpose of evaluating properly an application under this section, and such inquiries or investigations shall be carried out in accordance with this Act.

(12) (a) In the case of an investment business firm, a supervisory authority acting as a competent authority shall apply this Act, having regard to the division of responsibilities between the home and host Member States of the investment business firm concerned, which are set out in Council Directive 93/22/EEC of 10 May 1993[^(1)] and Council Directive 93/6/EEC of 15 March, 1993^(1) and the relevant sections of this Act shall be construed accordingly.

(b) Subject to the provisions of this section, investment business firms shall be subject to such conditions or requirements or both as may be imposed on them by the supervisory authority in the interests of any or all of the following, namely:

(i) the proper and orderly regulation and supervision of investment business firms,

(ii) the protection of investors or clients or both.

(13) The supervisory authority may impose requirements on a proposed investment business firm or an authorised investment business firm to organise its business or corporate structure or control of any associated undertaking or related undertaking not supervised by the supervisory authority such that the investment business firm when authorised under this Act and, where appropriate and practicable, the business of any associated undertaking or related undertaking, either collectively or individually, is capable of being supervised to the satisfaction of the supervisory authority under this Act.

(14) A proposed investment business firm shall be informed whether or not authorisation has been granted—

(a) within six months of the date of receipt of the application or within six months of the coming into operation of this section, whichever is the later, or

(b) where additional information in relation to the application has been sought by the supervisory authority, within a period of six months after the receipt by the supervisory authority of the additional information or the period of twelve months after the receipt of the application, whichever is the sooner.

(15) A supervisory authority may impose conditions or requirements or both on an authorised investment business firm which is constituted as an unincorporated body of persons or which is a sole trader, in order to achieve an equivalent level of supervision to that pertaining to an authorised investment business firm which is constituted as a corporate body.

(16) It shall be an offence for a proposed investment business firm or any other person to apply for authorisation under this section knowingly or recklessly using false or misleading information, or knowingly or recklessly making false or misleading statements, in relation to an application for an authorisation under this section.

11 Requests from Commission.

11.—Notwithstanding any other provision of this Act, a supervisory authority acting as competent authority shall comply with requests from the Commission to limit or suspend decisions where—

(a) a proposed investment business firm which is the direct or indirect subsidiary of a parent governed by the law of a State which is not a Member State of the European Community seeks authorisation from the supervisory authority acting as a competent authority, or

(b) an undertaking which is governed by the law of a State which is not a Member State acquires a holding in any authorised investment business firm such that the latter would become its subsidiary.

12 Establishment of branches outside the State.

12.—(1) When an authorised investment business firm wishes to establish a branch in another Member State it shall notify in writing the supervisory authority setting out the address of the proposed branch from which documents may be obtained, the names of the proposed managers and a programme of operations setting out inter alia the types of business envisaged and the proposed organisational structure of the branch.

(2) Subject to subsection (3) of this section, the supervisory authority acting as a competent authority may communicate information referred to in subsection (1) of this section to the relevant competent authority in that other Member State in accordance with the provisions of Council Directive 93/22/EEC of 10 May, 1993[^(1)], within three months of receiving all information requested of the authorised investment business firm, and shall inform the authorised investment business firm accordingly.

(3) Where the supervisory authority acting as a competent authority does not communicate the information in the manner referred to in subsection (2) of this section, the supervisory authority shall give reasons for the refusal to the authorised investment business firm and the authorised investment business firm shall be entitled to appeal to the Court against that decision.

(4) When an authorised investment business firm wishes to carry on business within the territory of another Member State for the first time under the freedom to provide services it shall notify the supervisory authority in writing setting out the Member State in which it intends to operate and a programme of operations stating in particular the investment service or services it intends to provide.

(5) Where an authorised investment business firm wishes to change any particulars supplied under subsection (1) of this section, it shall notify the supervisory authority acting as a competent authority, in writing, of any such changes and allow at least one month from the date of the notification before carrying out the changes so as to allow the supervisory authority acting as a competent authority to exercise its functions under this Act.

(6) The supervisory authority shall communicate the information referred to in subsection (4) of this section to the relevant competent authority in that other Member State in accordance with the provisions of Council Directive 93/22/EEC of 10 May 1993[^(1)] within one month of receiving all information referred to in subsection (4) of this section.

(7) Where an authorised investment business firm wishes the content of the information communicated in accordance with subsection (4) of this section to be amended it shall give notice of the amendment in writing to the supervisory authority and to the competent authority in the host Member State before implementing the change to allow the competent authority of that Member State to exercise its obligations under Council Directive 93/22/EEC of 10 May 1993[^(1)].

13 Existing investment business firms.

13.—(1) Notwithstanding section 9 of this Act, a person who is an investment business firm on the day immediately prior to the coming into operation of this section and which is not deemed to be authorised under Part IV or Part VII of this Act may stand authorised, on the coming into operation of this section, as an authorised investment business firm until a supervisory authority has granted or refused authorisation to it:

Provided that, no later than three months after the coming into operation of this Part of this Act, it applies to the supervisory authority under section 10 of this Act for authorisation, and, in that section, references to a proposed investment business firm shall be construed accordingly.

(2) Pending a decision by the supervisory authority to authorise an investment business firm to whom subsection (1) of this section refers, or during the three months referred to in subsection (1) of this section, or during both such times, the supervisory authority may do all or any of the following, namely:

(a) impose such conditions or requirements or both as it thinks fit relating to the proper and orderly regulation and supervision of the investment business firm or in relation to the protection of investors, including conditions or requirements, or both, which relate to matters in an associated undertaking, a related undertaking, or in both,

(b) issue directions under this Act.

(3) A person to whom subsection (1) of this section refers may appeal to the Court against the conditions or requirements imposed under this section.

(4) On hearing an application under subsection (3) of this section, the Court may confirm, vary or rescind any condition or requirement imposed under this section.

(5) Notwithstanding that section 10 (5) (i) of this Act has not been complied with and, pending the implementation of Council Directive 93/22/EEC of 10 May 1993^(1), in each Member State, a supervisory authority may authorise an investment business firm where it is satisfied that the firm concerned is subject to an adequate level of prudential supervision in its home Member State, and the supervisory authority may impose conditions or requirements on that firm or an associated or related undertaking, or issue directions under this Act, and such persons shall stand authorised for the purposes of section 10 of this Act, pending the implementation of Council Directive 93/22/EEC of 10 May 1993[^(1)] in its home Member State.

14 Imposition of conditions or requirements on authorised investment business firms.

14.—(1) Without prejudice to section 10 of this Act, where the supervisory authority grants an authorisation under that section, it may do all or any of the following, namely:

(a) make its authorisation subject to such conditions or requirements, or both, as it considers fit, relating to the proper and orderly regulation and supervision of an authorised investment business firm,

(b) impose conditions or requirements or both which relate to matters in an associated undertaking or a related undertaking,

(c) at any time impose conditions or requirements or both on an authorised investment business firm and either amend or revoke any condition or requirement imposed under this paragraph or under paragraph (a) or (b) of this subsection:

Provided the said conditions or requirements do not contravene any guidelines in that behalf which may be issued by the Minister to the supervisory authority from time to time in the interests of the proper and orderly regulation of investment business firms or the protection of investors or both and that the guidelines are published in the Iris Oifigiúil.

(2) Any condition or requirement referred to in subsection (1) of this section may be imposed in relation to any or all of the following, namely:

(a) an authorised investment business firm,

(b) all authorised investment business firms,

(c) a class of authorised investment business firms,

(d) a specified period of time or times,

(e) an associated undertaking or related undertaking,

(f) any matter, as the supervisory authority may consider appropriate, in the interests of the proper and orderly regulation and supervision of investment business firms and the protection of investors.

(3) An authorised investment business firm may appeal to the Court against the imposition of any condition or requirement imposed under subsection (1) of this section and, on hearing an appeal under this section, the Court may confirm, vary or rescind any condition or requirement imposed under this section.

(4) Without prejudice to the generality of subsections (1) to (3) of this section, a supervisory authority may impose conditions or requirements on an authorised investment business firm—

(a) concerning the level of training, qualifications or professional competence of managers, officers or employees, or

(b) concerning the provision of information to the supervisory authority or such other person as may be specified by the supervisory authority, pursuant to Article 20 of Council Directive 93/22/EEC of 20 May 1993[^(1)].

15 Refusal to consent to amendment of memorandum and articles of association.

15.—(1) A supervisory authority may require that any proposed amendment to the memorandum of association or articles of association of an authorised investment business firm shall not be made without the prior consent in writing of the supervisory authority.

(2) Whenever a supervisory authority refuses to consent to an amendment of or addition to the memorandum of association, or articles of association, or both of an authorised investment business firm, it shall serve notice on the authorised investment business firm concerned stating that it refuses to consent to the amendment or addition and setting out the reasons for the refusal in the notice and the authorised investment business firm may, within 21 days of receipt of such notice, appeal to the Court against the decision.

16 Revocation of authorisation.

16.—(1) A supervisory authority may revoke the authorisation of an authorised investment business firm where—

(a) a request is made to it in that behalf by the authorised investment business firm, or

(b) an authorised investment business firm—

(i) has failed to operate as an investment business firm within 12 months of the date on which it was authorised under this Act, or

(ii) has failed to operate as an investment business firm for a period of more than six months, or

(iii) is being wound up.

(2) Without prejudice to the power of a supervisory authority to revoke an authorisation under subsection (1) of this section, a supervisory authority may apply to the Court in a summary manner for an order revoking the authorisation of an authorised investment business firm in any or all of the following circumstances, namely, where—

(a) it is expedient to do so in the interests of the proper and orderly regulation and supervision of investment business firms or in order to protect investors or in any or all of these circumstances,

(b) an authorised investment business firm has been convicted on indictment of any offence under this Act or any Act under which a supervisory authority exercises statutory functions or any offence involving fraud, dishonesty or breach of trust,

(c) circumstances have materially changed since the granting of the authorisation such that, if an application for authorisation were made at the time of the application to the Court, a different decision would be taken in relation to the application for authorisation,

(d) the authorisation was obtained by knowingly or recklessly making false or misleading statements, or by knowingly or recklessly using false or misleading information,

(e) an authorised investment business firm has systematically failed to comply with a condition or requirement of this Act,

(f) an authorised investment business firm has failed to comply I to a material degree with a condition or requirement of this Act,

(g) an authorised investment business firm no longer fulfils any or all of the conditions or requirements which were imposed when the authorisation was granted or which were subsequently imposed,

(h) an authorised investment business firm—

(i) no longer complies with capital or any other financial requirements specified by the supervisory authority from time to time, or

(ii) is not maintaining, or is unlikely to be able to maintain, adequate capital resources or other financial resources having regard to the nature and volume of its business,

(i) an authorised investment business firm becomes unable or, in the opinion of the supervisory authority, is likely to become unable, to meet its obligations to its creditors or suspends payments lawfully due,

(j) an authorised investment business firm has infringed to a material degree a code of conduct or rules of conduct specified in or set out under section 37 of this Act,

(k) a director, manager or qualifying shareholder of an authorised investment business firm is no longer deemed by the supervisory authority to fulfil the conditions required by section 10 of this Act to be a director or manager or qualifying shareholder of an authorised investment business firm,

(l) an authorised investment business firm has failed to comply with a condition, requirement or direction, or any or all of these, imposed under this Act and the circumstances are such that the supervisory authority is of the opinion that the stability and soundness of the authorised investment business firm is or has been materially affected by such a failure,

(m) an authorised investment business firm has so organised its business or corporate structure such that the authorised investment business firm and, where appropriate, any related undertaking or associated undertaking, either collectively or individually, is no longer capable of being supervised to the satisfaction of the supervisory authority under this Act.

(3) When the supervisory authority proposes to revoke the authorisation of an authorised investment business firm or proposes to apply to the Court for an order to revoke the authorisation of an investment business firm, the following procedure shall apply, namely, the supervisory authority shall serve notice on the authorised investment business firm of its intention and shall state its reasons in the notice.

(4) Where an application is made to the Court under this section the Court may make such interim or interlocutory orders as the circumstances may require.

(5) Persons (being persons who were authorised investment business firms) whose authorisation has been revoked (in this section referred to as “former authorised investment business firms”) shall continue to be responsible for arranging the discharge of all contracts entered into before announcement of the revocation of the authorisation, unless the supervisory authority states otherwise.

(6) Where the authorisation of an authorised investment business firm is revoked and the former authorised investment business firm, if a company, is not being wound up, or, if an unincorporated body of persons, is not the subject of a dissolution order, or, if a natural person, is not the subject of an adjudication of bankruptcy:

(a) the former authorised investment business firm shall continue to be subject to the duties and obligations imposed by this Act and any codes of conduct or rules of conduct or client money requirements or any other conditions or requirements imposed by a supervisory authority under any section of this Act until all the liabilities, duties and obligations of the said investment business firm have been discharged to the satisfaction of the supervisory authority,

(b) the former authorised investment business firm shall, as soon as possible after the revocation of the authorisation, notify the supervisory authority and such other persons, if any, as the supervisory authority indicates are to be notified, of the measures being taken to discharge without undue delay the liabilities, duties and obligations of the said investment business firm, and

(c) in the case where—

(i) the former authorised investment business firm has notified the supervisory authority in accordance with paragraph (b) of this subsection, and the supervisory authority is of the opinion that the measures being taken or proposed to be taken for the purposes of this section are not satisfactory, or

(ii) the former authorised investment business firm has not so notified the supervisory authority and the supervisory authority is of the opinion that the former authorised investment business firm has failed to so notify as soon as possible after the authorisation is revoked, or

(iii) the supervisory authority is of the opinion that the former authorised investment business firm has failed to take all reasonable steps to notify persons which the supervisory authority has indicated, under paragraph (b) of this subsection, are to be notified,

then, subject to subsection (10) of this section, the supervisory authority may give a direction in writing to the former authorised investment business firm for such period, not exceeding six months, prohibiting the former authorised investment business firm so directed from any or all of the following, namely—

(I) creating any liabilities,

(II) dealing with or disposing of any assets or specified assets of the former authorised investment business firm in any manner,

(III) engaging in any transaction or class of transaction or specified transaction,

(IV) making payments,

without the prior authorisation of the supervisory authority and the supervisory authority may further direct that former authorised investment business firm within two months of the initial direction to prepare and submit to it for its approval a scheme for the orderly discharge in full of the liabilities, duties and obligations concerned.

(7) Where the authorisation of an investment business firm is revoked and the former authorised investment business firm, if a company, is being wound up, or, if constituted as an unincorporated body of persons, is the subject of a dissolution order, or if a natural person is subject to an adjudication of bankruptcy then—

(a) the liquidator or the official assignee or receiver of the former authorised investment business firm shall, in addition to his duties and obligations in respect of the winding-up, dissolution or bankruptcy, be subject to the duties and obligations to which the former authorised investment business firm would be subject if it were an authorised investment business firm to which subsection (6) of this section relates and that subsection shall for the purposes of this section be construed accordingly,

(b) the liquidator or the official assignee or receiver shall also be subject to any conditions or requirements imposed under this Act as if the liquidator or the official assignee or receiver were an authorised investment business firm, and

(c) notwithstanding paragraph (a) of this subsection, the supervisory authority may, where authorisation is revoked and where the supervisory authority considers it appropriate in the circumstances, remove, on giving notice in writing to the liquidator, receiver or assignee of the former authorised investment business firm or the official assignee, in the case of bankruptcy, the duties and obligations imposed on the liquidator, receiver or official assignee concerned to comply with paragraph (b) of subsection (6) of this section and may impose, in writing, on that liquidator, receiver or official assignee such further duty or obligation which corresponds to that set out in paragraph (b) of that subsection.

(8) The supervisory authority shall publish notice of revocation of an authorisation of an authorised investment business firm in the Iris Oifigiúil within 28 days of such revocation.

(9) A former authorised investment business firm shall cease to operate as an investment business firm and it shall be an offence for a former authorised investment business firm to operate as an investment business firm.

(10) Where the supervisory authority gives a direction under subsection (6) of this section, it may apply to the Court, on being satisfied that the direction has not been complied with, and the Court may confirm, vary or set aside the direction on such terms and for such period as the Court thinks fit.

(11) The supervisory authority shall not apply to the Court to revoke an authorisation on the grounds set out in subsection (2) (k) of this section unless it has given an authorised investment business firm an opportunity to remove the director, manager or qualifying shareholder or otherwise deal with the concerns of the supervisory authority in relation to the probity or competence of the person concerned within such period of time as the supervisory authority may specify.

(12) An application under this section may be heard otherwise than in public.

17 Register of investment business firms.

17.—(1) A supervisory authority shall maintain a register or registers of investment business firms (to be known and in this Act to be referred to as a “Register of Investment Business Firms”) which it has authorised under section 10 of this Act and such a register may be held in electronic form.

(2) Each supervisory authority shall arrange that all Registers of Investment Business Firms or a copy or copies thereof shall be open for inspection in a single location by any member of the public at all reasonable times, on the payment of such fee as the relevant supervisory authority may specify or approve, and each supervisory authority shall further ensure that a list of firms deemed to be authorised under this Act by virtue of section 26 of this Act is maintained in the same location and is revised at such intervals as the supervisory authority deems appropriate.

(3) A Register of Investment Business Firms shall include the names and addresses of investment business firms and such other particulars as the supervisory authority may decide from time to time.

18 Asset and liability ratios and structures of authorised investment business firms.

18.—(1) A supervisory authority may impose a requirement on an authorised investment business firm to keep at all times a proportion of its assets in the form of liquid assets so as to enable the authorised investment business firm to meet its liabilities as they arise.

(2) An authorised investment business firm may keep liquid assets in addition to those required for the purpose of complying with subsection (1) of this section.

(3) For the purposes of complying with the requirements of a supervisory authority under subsection (1) of this section, an authorised investment business firm shall have regard to the range and scale of its business and that of any relevant associated undertaking or related undertaking and the composition and character of its assets and liabilities and those of any such undertaking.

(4) A supervisory authority may from time to time impose a requirement on an authorised investment business firm to maintain—

(a) a specified ratio, or

(b) a ratio which does not exceed a specified ratio, or

(c) a ratio which is not less than a specified ratio,

between its assets and its liabilities and the specified ratio may be expressed as a percentage of the assets or liabilities concerned.

(5) A requirement of a supervisory authority under this section may be expressed to apply to all or any of the following, namely—

(a) all authorised investment business firms,

(b) authorised investment business firms of a specified category or specified categories,

(c) the total assets or total liabilities of the authorised investment business firm or authorised investment business firms concerned,

(d) specified assets or assets of a specified kind,

(e) specified liabilities or liabilities of a specified kind,

(f) a specified time or times,

(g) during a specified period or periods,

and shall have effect in accordance with the specified terms of the requirement.

(6) A requirement under this section which is in force may be revoked by a supervisory authority or may be amended by a subsequent requirement under the relevant subsection.

(7) A supervisory authority may from time to time specify, as respects an authorised investment business firm, requirements as to the composition of its assets and requirements as to the composition of its liabilities.

(8) In determining, for the purposes of this section, the assets and liabilities of an authorised investment business firm with which another undertaking is associated or related, there shall be attributed to the authorised investment business firm, in a manner acceptable to or as may be specified by a supervisory authority, the whole or part of the assets and liabilities of whatever description of the associated undertaking or related undertaking.

(9) Any requirements imposed under this section by a supervisory authority acting as a competent authority may include requirements imposed for the purposes of applying Council Directive 93/6/EEC of 15 March, 1993[^(1)], or other relevant European Community Directives, to the authorised investment business firm.

(10) In this section—

(a) “specified” means specified by a supervisory authority under this section;

(b) “liabilities” include such contingent liabilities as may be specified by a supervisory authority from time to time for the purposes of this section;

(c) “liquid assets” means assets specified as such for the purposes of this section by a supervisory authority.

19 Maintenance of books and records by investment business firms.

19.—(1) (a) An investment business firm shall keep at an office or offices within the State such books and records (including books of accounts) or other documents as may be specified from time to time by a supervisory authority and shall notify the supervisory authority of the address of every office at which any such books or records are kept.

(b) A person who contravenes paragraph (a) of this subsection shall be guilty of an offence.

(2) A supervisory authority may specify different books, records or other documents for the purposes of this section and in relation to different investment business firms or different classes of investment business firms.

(3) Books and records or other documents kept pursuant to this section shall be—

(a) in addition to any books, records or other documents to be kept by or under any other enactment, and

(b) retained for at least such period as the supervisory authority may specify.

PART III Regulation and Supervision of Investment Business Firms

20 General functions of supervisory authorities.

20.—(1) Subject to such guidelines in this regard as may be issued by the Minister in the interests of the proper and orderly regulation and supervision of investment business firms and the protection of investors and notified to a supervisory authority in writing and published, from time to time, in the Iris Oifigiúil, supervisory authorities shall administer the system of regulation and supervision of investment business firms in accordance with the provisions of this Act in order to promote—

(a) the maintenance of the proper and orderly regulation and supervision of investment business firms or of financial markets, or both, and

(b) the protection of investors.

(2) Where a supervisory authority is of the opinion that it is necessary in the interests of assessing the capacity of an investment business firm to engage in an activity for which it has sought authorisation or for which it stands authorised under section 13 of this Act, it may commission an independent assessment of the capacity of the proposed investment business firm or of the authorised investment business firm.

(3) Subject to subsection (4) of this section, the Minister may, after consulting with the supervisory authorities, prescribe the fee to be paid to a supervisory authority by a proposed investment business firm or by an investment business firm supervised by it and the Minister may prescribe different fees for different classes of investment business firms.

(4) Regulations under this section may provide for such incidental or related matters as are, in the opinion of the Minister, necessary to give effect to such fees and where the Minister proposes to prescribe a fee under subsection (3) of this section he shall—

(a) publish details of the proposed fee where the fee is in respect of an application for authorisation, and

(b) consider any representations made to him within a reasonable period, being not less than two months after the date of such publication, as he shall specify at the time of publication.

(5) Notwithstanding any other provisions of this Act a supervisory authority shall co-operate with the other supervisory authority in the State and when acting as a competent authority shall co-operate with the competent authorities in other Member States so that the responsibilities of each supervisory and competent authority may be more effectively discharged.

(6) Without prejudice to the generality of subsection (1) of this section or to the powers of a supervisory authority under sections 19 and 65 of this Act, a supervisory authority acting as a competent authority may verify, at the request of a competent authority in another Member State, that any investment business firm authorised by that competent authority is complying with the relevant regulatory requirements imposed by that competent authority or by the home Member State of such an investment business firm.

(7) A competent authority in another Member State authorised in that Member State to supervise investment business firms may, having notified the supervisory authorities, inspect or investigate the business of an investment business firm supervised by that authority which has a place of business in the State at that place of business or otherwise for the purpose of verifying any information of the type referred to in Article 23(3) of Council Directive 93/22/EEC of 10 May, 1993[^(1)] in any one of the following manners—

(a) by inspection of the investment business firm, at that place of business or otherwise, by the authority concerned,

(b) by inspection of the investment business firm, at that place of business or otherwise, by a person authorised in that behalf by the authority concerned, or

(c) by a request from the authority concerned to a supervisory authority to carry out the inspection on its behalf of the place of business or otherwise.

21 Directions by supervisory authority.

21.—(1) Without prejudice to the power of a supervisory authority to impose conditions or requirements or both under this Act, and, without prejudice to the powers of a supervisory authority under subsections (2) or (4) of this section, where a supervisory authority considers it necessary to do so in the interests of the proper and orderly regulation and supervision of investment business firms of the protection of investors, the supervisory authority may give a direction to all or any of the following, namely—

(a) any or all authorised investment business firms,

(b) any or all proposed investment business firms,

(c) any or all investment business firms,

(d) any or all former authorised investment business firms,

(e) directors and those responsible for the management of authorised investment business firms,

(f) any person purporting to act or whom the supervisory authority reasonably believes is acting as an investment business firm,

in relation to any matter related to the operation of an investment business firm or any matter related to an acquiring transaction within the meaning of section 38 of this Act.

(2) Without prejudice to the powers of a supervisory authority under subsection (1) of this section, and without prejudice to the powers of a supervisory authority to impose conditions or requirements or both under this Act, where a supervisory authority is of the opinion that it is necessary to do so in the interests of the proper and orderly regulation and supervision of investment business firms or for the protection of investors or both or where an investment business firm—

(a) has become or is, in the opinion of the supervisory authority, likely to become unable to meet its obligations to its creditors or its clients or both, or

(b) is not maintaining or is, in the opinion of the supervisory authority, unlikely to be in a position to maintain adequate capital resources having regard to the volume and nature of its business, or no longer complies with capital or other financial requirements specified by the supervisory authority from time to time, or both, or

(c) has failed to comply with any condition or requirement imposed under this Act, and the circumstances are such that the supervisory authority is of the opinion that the stability or soundness of an investment business firm is materially affected by this failure, or

(d) is conducting business in such a manner as to jeopardise or prejudice monies or investment instruments held by or controlled by it on behalf of clients, or the rights and interests of those clients,

the supervisory authority may give a direction in writing to the investment business firm concerned to suspend for such period (not exceeding twelve months) as shall be specified in the direction any or all of the following, that is to say—

(i) the provision of any investment business service or services or the provision of any investment advice,

(ii) the making of payments to which subparagraph (i) of this subsection does not relate,

(iii) the acquisition or disposal of any assets or liabilities,

(iv) entering into transactions or agreements of any specified kind or entering into them except in specified circumstances or to a specified extent,

(v) soliciting business from persons of a specified kind or otherwise than from such persons or in a specified country,

(vi) carrying on business in a specified manner or otherwise than in a specified manner,

which have not been authorised by the supervisory authority.

(3) A direction under subsection (1) or (2) of this section may be given to a particular person or generally to all persons to whom those subsections apply or to a particular class of person or during a specified period of time or times, or by reference to any other matter which the supervisory authority may consider appropriate.

(4) The First Schedule to this Act shall apply as respects a direction by the supervisory authority under this section.

(5) Where a supervisory authority gives a direction under this section, which said direction shall have immediate effect, the supervisory authority may or, where the supervisory authority is of the opinion that the said direction is not being complied with, the supervisory authority shall apply to the Court in a summary manner for an order confirming the direction.

(6) The Court may, on an application being made under subsection (5) of this section, hear evidence from creditors and the Court may make, in any application under this section, such interim or interlocutory order, if any, as it considers fit.

(7) While a direction under this section is in force, no winding-up proceedings in relation to an authorised investment business firm or associated or related undertaking or, in the case of an authorised investment business firm or associated or related undertaking which is constituted as an unincorporated body of persons, no proceedings for an order of dissolution, or, in the case of an authorised investment business firm which is constituted as a sole trader, no bankruptcy proceedings, may be commenced or resolution for winding-up passed in relation to the authorised investment business firm or associated or related undertaking, and no receiver shall be appointed over the assets or over any part of the assets of the authorised investment business firm or associated or related undertaking and such assets shall not be attached, sequestered or otherwise distrained except with the prior sanction of the Court.

(8) The Court may hear proceedings or part of proceedings under this section otherwise than in public.

(9) A creditor who is affected by a direction under subsection (2) of this section may apply to the Court to vary or set aside that direction where it affects the interests of the creditor to a material degree.

22 Winding-up on application to Court.

22.—(1) Notwithstanding section 215 of the Companies Act, 1963, a supervisory authority may, by presenting a petition, apply to the Court to have an authorised investment business firm or former authorised investment business firm wound up on any of the following grounds, namely that—

(a) an authorised investment business firm or former authorised investment business firm is or, in the opinion of the supervisory authority, may be unable to meet its obligations to its clients or creditors,

(b) the authorisation of the investment business firm has been revoked and the former authorised investment business firm has ceased to operate as an investment business firm,

(c) the supervisory authority considers that it is in the interest of the proper and orderly regulation and supervision of investment business firms or is necessary for the protection of investors that the authorised investment business firm or former authorised investment business firm be wound up,

(d) an authorised investment business firm or a former authorised investment business firm has failed to comply with any direction given by the supervisory authority under this Act.

(2) Where the petition for the winding-up of an authorised investment business firm or former authorised investment business firm is presented by a person other than the supervisory authority, a copy of the petition shall be served on the supervisory authority which shall be entitled to be heard on the petition.

(3) Where an authorised investment business firm or former authorised investment business firm is being wound up voluntarily and the supervisory authority has reason to believe that any of the grounds set out in subsection (1) of this section applies, then, the supervisory authority may apply to the Court to have that investment business firm wound up by the Court.

(4) Where an authorised investment business firm or former authorised investment business firm is being wound up and the supervisory authority is not a creditor any notice or document, by whatever name called, which is required to be sent to a creditor of the authorised investment business firm or former authorised investment business firm shall be sent also to the supervisory authority.

(5) An officer of the supervisory authority, or any other person, duly appointed in writing in that behalf by the Minister for Enterprise and Employment or the Governor of the Bank or by an officer designated by that Minister or that Governor for the purpose of appointing persons under this section, may attend any meeting of creditors of an authorised investment business firm or former authorised investment business firm.

(6) (a) The Minister for Enterprise and Employment or the Governor of the Bank, or an officer designated by the said Minister or Governor for that purpose, may appoint in writing an officer of a supervisory authority or any other person to be a member of any committee of inspection appointed under section 233 or 268 of the Companies Act, 1963, in respect of the authorised investment business firm or former authorised investment business firm.

(b) A person duly appointed under paragraph (a) of this subsection shall neither be counted in computing the minimum or maximum numbers of members of such a committee prescribed under the Companies Acts, nor be removed from membership of the committee without the consent of the supervisory authority.

(7) The rules of Court relating to the winding-up of companies shall, pending the making of rules of Court for the purposes of this subsection, apply for such purposes with such adaptations as may be necessary.

(8) In the case of an authorised investment business firm or a former authorised investment business firm which is constituted as an unincorporated body of persons, the supervisory authority may apply by petition to the Court for a decree of dissolution and for that purpose, section 35 of the Partnership Act, 1890, shall extend to the supervisory authority and shall apply as if the grounds specified in subsection (1) (a) to (d) of this section were incorporated therein.

(9) In the case of an authorised investment business firm or a former authorised investment business firm which is constituted as an individual person, the supervisory authority may apply by petition to the Court for an adjudication of bankruptcy within the meaning of the Bankruptcy Act, 1988, and the Bankruptcy Act, 1988 shall apply as if the grounds specified in subsection (1) (a) to (d) of this section were acts of bankruptcy (within the meaning of the Bankruptcy Act, 1988).

23 Restrictions on advertising.

23.—(1) Any person who causes to be advertised, or supplies, or offers to supply, investment business services or investment advice, or makes any other solicitation in respect of investment business services or investment advice or who holds himself out to be an investment business firm, where the provision of such services or advice would be an offence under section 9 of this Act shall be guilty of an offence.

(2) Without prejudice to the generality of any section of this Act empowering a supervisory authority to impose conditions or requirements, or both, a supervisory authority may impose such conditions or requirements or both, on the investment business firm concerned in respect of advertising by that investment business firm as the supervisory authority considers necessary, in the interests of—

(a) the orderly and proper regulation and supervision of authorised investment business firms, or

(b) the protection of investors.

(3) A supervisory authority may impose a requirement on an investment business firm or all investment business firms to publish specified information or to display specified information at their premises.

(4) The Minister may prescribe information to be displayed by an authorised investment business firm at its premises.

(5) (a) If, with respect to any investment business firm, a supervisory authority considers it expedient to do so, in the interest of the proper and orderly regulation and supervision of investment business firms or the protection of investors, the supervisory authority may give such investment business firm a direction in relation to the content and form of any advertisement or other means of soliciting client money or investment instruments or business or in relation to the content and form of any advertisement relating to any service provided or business being undertaken by the investment business firm, or to withdraw an advertisement or to cease advertising.

(b) Without prejudice to the generality of paragraph (a) of this subsection, a direction under this section may do all or any of the following—

(i) prohibit the issue by the investment business firm of advertisements of all descriptions or any specified description,

(ii) require the investment business firm to modify advertisements of a specified description in a specified manner,

(iii) prohibit the issue by the investment business firm of any advertisements which are, or are substantially, repetitions of a specified advertisement,

(iv) require the investment business firm to withdraw any specified advertisement or any advertisement of a specified description,

(v) require the investment business firm to include specified information in any advertisement to be published by it or on its behalf or in any statement to the public to be made by it or on its behalf.

(6) If, in contravention of subsection (1) of this section or in contravention of a direction under this section, a person issues, or causes to be issued, an advertisement inviting persons to enter or offer to enter into an investment agreement or containing information calculated to lead directly or indirectly to persons doing so, then, subject to subsection (9) of this section—

(a) he shall not be entitled to enforce any agreement to which the advertisement related and which was entered into after the issue of the advertisement, and

(b) the other party shall be entitled to recover any money or other property or investment instruments paid or transferred by him under the agreement, together with compensation for any loss sustained by him as a result of having paid money or transferred property or investment instruments under the agreement.

(7) If, in contravention of subsection (1) of this section, or in contravention of a direction issued under this section, a person issues or causes to be issued an advertisement inviting persons to exercise any rights conferred by an investment or containing information calculated to lead directly or indirectly to persons doing so, then, subject to subsection (8) of this section—

(a) that person shall not be entitled to enforce any obligation to which a person is subject as a result of any exercise by him after the issue of the advertisement of any rights to which the advertisement related, and

(b) such a person shall be entitled to recover any money or other property or investment instruments paid or transferred by him under any such obligation, together with compensation for any loss sustained by him.

(8) The compensation recoverable under subsection (6) or (7) of this section shall be such as the parties may agree or as the Court may, on the application of either party, determine.

(9) The Court may allow any such agreement or obligation as is mentioned in subsection (6) or (7) of this section to be enforced or money or property or investment instruments paid or transferred under it to be retained if it is satisfied—

(a) that the person against whom enforcement is sought or who is seeking to recover the money or property or investment instruments was not influenced, or not influenced to any material extent, by the advertisements in making his decision to enter into the agreement or as to the exercise of the rights in question, or

(b) that the advertisement was not misleading as to the nature of the investment, the terms of the agreement or, as the case may be, the consequences of exercising the rights in question and fairly stated any risks involved in those matters.

(10) Where a person elects not to perform an agreement or an obligation which by virtue of subsection (6) or (7) of this section is unenforceable against him or by virtue of either of those subsections recovers money paid or other property or investment instruments transferred by him under an agreement or obligation, he shall repay any money and return any other property or investment instruments received by him under the agreement or, as the case may be, as a result of exercising the rights in question.

(11) Where any property or investment instruments transferred under an agreement or obligation to which subsection (6) or (7) of this section applies has passed to a third party the references to that property or investment instruments in this section shall be construed as references to its value at the time of its transfer under the agreement or obligation.

(12) If an advertisement or other solicitation to which this section relates is published and it does not include the name and address of the person who arranged with the publisher for the advertisement or solicitation, a supervisory authority may, at any time within the period of 12 months after any publication of the advertisement or solicitation, request the publisher to supply the name and address of that person to the supervisory authority and the publisher shall forthwith comply with that request.

(13) A supervisory authority may—

(a) direct a person to arrange the publication of a correction of a misleading advertisement concerning services of investment business firms, or

(b) direct a person to arrange the publication of a correction of an advertisement which contravenes the provisions of this section, or

(c) direct a person to arrange the publication of the fact that an offence under this section has taken place and that a fine, if any, has been imposed, or

(d) direct a person to arrange the publication of the fact that a determination that there has been a breach of a condition or requirement under this section has been made under section 74 of this Act, or

(e) arrange the publication of an advertisement correcting any misleading aspects of advertisements, published by an investment business firm,

in a manner specified by the supervisory authority.

(14) In this section “specified” means specified in a direction under this section.

(15) Any person who fails to comply with a direction or a prescription imposed under subsections (4), (5) or (13) of this section, or who fails to comply with a request of a supervisory authority under subsection (12) of this section, shall be guilty of an offence.

24 Exemption from restrictions on advertising.

24.—(1) Section 23 of this Act shall not apply to a class of advertisement specified from time to time by a supervisory authority for the purpose of exempting from that section—

(a) advertisements appearing to a supervisory authority to have a private character, whether by reason of a connection between the person issuing them and those to whom they are issued or otherwise, or

(b) advertisements appearing to a supervisory authority to deal with investments only incidentally, or

(c) advertisements issued to persons appearing to a supervisory authority to be sufficiently expert to understand any risks involved.

(2) An exemption under subsection (1) of this section shall be subject to such conditions as may be specified by a supervisory authority when granting the exemption.

PART IV Investment Product Intermediaries

25 Definition of investment product intermediary.

25.—In this Act “investment product intermediary” means an investment business firm or a solicitor holding a practising certificate (within the meaning of the Solicitors Acts, 1954 to 1994) who—

(a) acts as a deposit agent or acts as a deposit broker, or

(b) provides a service of the reception and transmission of orders to a product producer in any of the instruments referred to in section 4(2) (a) to (c) or shares in a company which are listed on a stock exchange or bonds so listed or prize bonds.

26 Definition of restricted activity investment product intermediaries.

26.—(1) In this Act “restricted activity investment product intermediary” means a person whose only investment business service is receiving and transmitting orders in the instruments referred to in section 4 (2) (a) to (c) of this Act or receiving and transmitting—

(a) orders in shares in a company which are listed on a stock exchange or bonds so listed, or

(b) orders in prize bonds, or

(c) acting as a deposit agent or as a deposit broker,

or engaging in any or all of these services and, in the course of engaging in any of these services transmits orders only to all or any of the following, namely—

(i) investment firms authorised in accordance with Directive 93/22/EEC of 10 May, 1993[^(1)] by a competent authority of another Member State, or to an authorised investment business firm, not being a restricted activity investment product intermediary, or a certified person, or to a member firm, within the meaning of the Stock Exchange Act, 1995, in the State;

(ii) credit institutions authorised in accordance with Directives 77/780/EEC of 12 December, 1977[^(2)] and 89/646/EEC of 15 December, 1989[^(3)];