Investment Intermediaries Act , 1995

(iii) to such other branches of investment business firms or credit institutions authorised in a third country as the supervisory authority may approve from time to time;

(iv) collective investment undertakings authorised under the law of a Member State of the European Union to market units in collective investments to the public, and to the managers of such undertakings;

(v) investment companies with fixed capital as defined in Article 15(4) of Council Directive 77/91/EEC of 13 December, 1976[^(4)] the securities of which are listed or dealt in on a regulated market in a Member State;

(vi) the Prize Bond Company Ltd. or any successor to it as operator of the Prize Bond scheme,

and which does not hold clients' funds or securities, so that in its dealings with clients it does not become a debtor to its clients, but this shall not prevent it from—

(I) taking non-negotiable cheques or similar instruments made out to one of the undertakings mentioned at subparagraphs (i) to (vi) of this subsection, for the purposes of the receipt and transmission of orders, or

(II) when acting as a deposit agent, taking cash from a client for the client's account with a credit institution.

(2) A restricted activity investment product intermediary shall, while it remains a restricted activity investment product intermediary, and notwithstanding section 10 of this Act, be deemed to be an authorised investment business firm for the purposes of this Act, provided that the restricted activity investment product intermediary has not had its authorisation revoked under section 16(2) of this Act and not re-instated and that no director, officer or manager of the restricted activity investment product intermediary has been such a director, officer or manager of an investment business firm which has had its authorisation under section 16(2) of this Act revoked and not re-instated.

(3) Subsection (2) of this section shall apply without prejudice to any of the powers of a supervisory authority in relation to this Act.

27 Requirements for investment product intermediaries.

27.—A person shall not act as or hold himself out to be an investment product intermediary unless he holds an appointment in writing from each product producer for which he is an intermediary, and unless—

(a) he is a member of any approved representative body specified for this purpose by the Minister for Enterprise and Employment whose rules require compliance with the terms of this Act, or

(b) he is a certified person, or

(c) he otherwise complies with the provisions of this Act, and

he effects a policy of professional indemnity insurance in a form specified by the Minister for Enterprise and Employment (and different forms may be specified for different classes of person), after consultation with the Bank, indemnifying him up to such sum, in such manner, in respect of such matters and valid for such minimum period as the Minister for Enterprise and Employment may prescribe from time to time, following consultation with the Bank.

28 Obligations on product producers.

28.—(1) A product producer may not appoint an investment product intermediary to act on its behalf in the reception or transmission of orders in the instruments referred to in section 4(2)(a) to (c) or shares in a company or bonds which are listed on a stock exchange, or prize bonds or in acting as a deposit agent or as a deposit broker or any or all of these, and may not pay any commission, fee or other reward to an investment product intermediary, or accept any orders transmitted by an investment product intermediary on behalf of a client, unless to the best of the product producer's knowledge and belief, having caused reasonable enquiry to be made, the investment product intermediary—

(a) is a member of an approved representative body specified by the Minister for Enterprise and Employment whose rules require compliance with the terms of this Act, or

(b) is a certified person, or

(c) otherwise complies with the terms of this Act and is of good character.

(2) A product producer may for the purposes of subsection (1) of this section assume that an investment product intermediary, not being a restricted activity investment product intermediary, which is authorised for that activity by a supervisory authority under section 10 of this Act, or by a competent authority in another Member State, complies with the terms of this Act.

(3) It shall be an offence for a person to provide false or misleading information for the purposes of obtaining an appointment for the purposes of section 27 of this Act.

(4) Where any payment in any form is made to or through an investment product intermediary, such that a receipt is required to be issued under section 30 of this Act, the payment shall be treated as having been paid to the relevant product producer when the investment product intermediary takes receipt of the payment:

Provided that the investment product intermediary has a written appointment from that product producer.

29 Disclosure obligations of restricted activity investment product intermediaries.

29.—A restricted activity investment product intermediary shall state on all stationery and in all advertisements and on first entering into a business relationship with a client that it is not within its terms of authorisation to accept cash (other than in relation to acting as a deposit agent) or other funds or securities on behalf of its clients or to act on a discretionary basis in the management of client funds and, without prejudice to the generality of the aforesaid, the Minister for Enterprise and Employment may prescribe other information to be given or conditions to be satisfied by a restricted activity investment product intermediary.

30 Issue of receipts.

30.—Without prejudice to any codes of conduct which may be issued or approved of by a supervisory authority under section 37 of this Act, an investment product intermediary shall issue a receipt for each non-negotiable or negotiable instrument or other payment received for the purposes of transmitting an order or a deposit to a product producer and the receipt shall state succinctly the terms and conditions upon which a transaction was entered into and, without prejudice to the generality of the aforesaid, shall state clearly—

(a) the name and address of the person furnishing the instrument or payment;

(b) the value of the instrument or payment;

(c) the date of its receipt;

(d) the name of the person to whom the instrument is payable; and

(e) the purpose of the payment,

and an investment product intermediary which fails to issue such a receipt shall be guilty of an offence.

31 Register of investment product intermediaries.

31.—(1) A product producer shall establish and maintain a register of all its appointed investment product intermediaries at its principal office in the State, if any.

(2) The register referred to in subsections (1) and (4) of this section shall be open to public inspection at reasonable times during normal working hours.

(3) A product producer shall provide the Minister for Enterprise and Employment with information to be included by a product producer in the register kept for the purposes of this section at such intervals as that Minister may specify.

(4) The Minister for Enterprise and Employment shall establish and maintain a register of all investment product intermediaries appointed by product producers.

(5) Where the appointment of an investment product intermediary is discontinued the product producer shall inform a supervisory authority immediately of the termination of the appointment and the circumstances surrounding the termination of the appointment.

PART V Auditors

32 Notification of changes of auditor.

32.—(1) A supervisory authority may impose a requirement in writing on an authorised investment business firm—

(a) to notify the supervisory authority at least 15 days—

(i) before notices are sent to shareholders concerning the proposed appointment or re-appointment of a person to the office of auditor of an authorised investment business firm for the purposes of the Companies Acts, or

(ii) before the directors of an authorised investment business firm fill any casual vacancy in the office of auditor by virtue of section 160 (7) of the Companies Act, 1963,

of the name of the person to be so proposed, to be re-appointed or to fill that vacancy,

(b) to supply, within such period of time as the supervisory authority shall state, such information as it may request concerning the person named for the purpose of paragraph (a) of this subsection.

(2) Where a supervisory authority is of the opinion that it would not be in the best interest of investors or in the interests of the proper and orderly regulation and supervision of investment business firms, it may direct, as the circumstances require, that an authorised investment business firm does not appoint or re-appoint to the office of auditor or that the directors do not fill a casual vacancy in the office with a named person and the direction shall be complied with.

(3) Where a supervisory authority gives a direction under subsection (2) of this section that an authorised investment business firm shall not re-appoint a person to the office of auditor the person who has not been re-appointed may apply to the Court for an order to set aside the direction of the supervisory authority.

33 Auditors for investment business firms which are not incorporated bodies and duties of auditors.

33.—(1) An authorised investment business firm (other than a certified person or a person who does not provide investment business services) which is constituted as an unincorporated body of persons or as a sole trader shall be required to appoint an auditor to audit and make a report on its accounts on an annual basis and a person shall not be qualified for appointment as an auditor of an authorised investment business firm which is constituted as an unincorporated body of persons or sole trader unless he meets the requirements of, and is not excluded by, the provisions of the Companies Acts.

(2) A supervisory authority may set out requirements in respect of the accounts and audit of an authorised investment business firm which is constituted as an unincorporated body of persons or as a sole trader including requirements which are analogous to those set out in the Companies Acts and may impose duties or obligations on the auditor or on the authorised investment business firm concerned.

(3) If at any time an auditor of an authorised investment business firm and, in the case of paragraphs (e) and (f) of this subsection, an auditor of an investment business firm—

(a) has reason to believe that there exist circumstances which are likely to affect to a material degree the ability of the authorised investment business firm to fulfil its obligations to investors or clients or meet any of its financial obligations, or

(b) has reason to believe there are material defects in the accounting records or systems of control of the business and records, or

(c) has reason to believe that there are material inaccuracies in, or omissions from, any returns made by an authorised investment business firm to the supervisory authority, or

(d) proposes to qualify any report or certificate which he is to provide in relation to the financial statements or returns of an authorised investment business firm under the Companies Acts, or under this Act, or

(e) has reason to believe that there are material defects in the system of any investment business firm for ensuring the safe custody of money or investment instruments of clients or has reason to believe that an investment business firm is not complying with client money requirements or rules or provisions of this Act, or

(f) has reason to believe that an investment business firm which is a certified person has breached to a material degree the rules relating to the provision of investment business services of any approved professional body by which it is regulated or supervised, or

(g) decides to resign or not to seek re-election as auditor,

the auditor shall report the matter to the relevant supervisory authority in writing without delay.

(4) The auditor of an investment business firm, if requested to do so by a supervisory authority, shall furnish to the supervisory authority a report stating whether, in the opinion of the auditor and to the best of the knowledge of that auditor, the investment business firm has or has not complied with—

(a) any condition or requirement set out or imposed under this Act in relation to financial resources, money or investment instruments of clients, accounting records and specified aspects of control systems or any or all of these, or

(b) any condition or requirement set out in or imposed under this Act,

and the supervisory authority concerned may specify that such a report be furnished to it in such form as it may specify either on an annual basis or on such other occasion as the supervisory authority may specify or both.

(5) Where the auditor of an investment business firm so requests, a supervisory authority may provide to the auditor, in writing, details of any information of a financial nature concerning the said investment business firm as the auditor requests for the purpose of enabling him to comply with this Act.

(6) An auditor of an investment business firm shall send to the investment business firm concerned a copy of any report made by him to a supervisory authority under subsection (3) or (4) of this section.

(7) An auditor of an authorised investment business firm shall communicate to a supervisory authority any matters which come to the attention of the auditor and are such as to give the auditor reasonable cause to believe that the matter is or may be of material significance for determining either whether—

(a) the level of competence of a person is satisfactory having regard to the matters with which they would be concerned in relation to the business of an authorised investment business firm and their probity is such as to render them suitable to carry on the business of an authorised investment business firm; or

(b) disciplinary action ought to be taken, or a direction given, by reason of the contravention by a person of any provision of this Act or any conditions or requirements, or both, or directions imposed by the supervisory authority under this Act.

(8) (a) Where a supervisory authority is of the opinion that the exercise of its functions under this Act or the protection of investors or clients or the interest of the proper and orderly regulation and supervision of investment business firms so requires, the supervisory authority may require the auditor of an investment business firm to supply it with such information as it may specify in relation to the audit of the business of the said investment business firm and the auditor shall comply with the requirement.

(b) The supervisory authority may specify that, in supplying information for the purposes of this subsection, the auditor shall act independently of an investment business firm.

(9) No duty to which an auditor of an investment business firm may be subject shall be regarded as contravened and no liability to the investment business firm or to the shareholders, creditors, investors, clients or other interested parties of any investment business firm shall attach to the auditor by reason of his compliance with any obligation imposed on him by or under this section.

(10) It shall be the duty of an auditor in preparing an audit or a report under this section to carry out such investigations as will enable him to form an opinion as to whether—

(a) an authorised investment business firm has kept proper accounting records;

(b) an authorised investment business firm has maintained satisfactory systems of control of its business and records and systems of inspection and report thereon;

(c) an authorised investment business firm has complied with rules or requirements relating to money of clients and investment instruments referred to in section 52 of this Act and with the provisions of sections 52(3), 52(5), or 52(6);

and, where an auditor is of the opinion that an authorised investment business firm has failed to keep proper accounting records or to maintain a satisfactory system of control of its business or records, or has failed to comply with the rules or requirements of this Act referred to in paragraph (c) of this subsection the auditor shall so state in his report.

(11) An auditor of an authorised investment business firm shall have a right of access at all reasonable times to the books, accounts, records and vouchers of an authorised investment business firm and to all other documents relating to its affairs (including documents and records relating to clients' money and investment instruments) and shall be entitled to require from the officers, directors, managers and employees of the said authorised investment business firm such information and explanations as are within their knowledge or can be procured by them as the auditor thinks necessary for the performance of the duties of auditor.

(12) Subject to subsection (15) of this section, where an authorised investment business firm has a related undertaking or associated undertaking, then—

(a) if the associated undertaking or related undertaking is a body established or operating in the State it shall be the duty of the associated undertaking or related undertaking and its auditors to give to the auditors of an authorised investment business firm, as the case may be, such information and explanation and such access to documents as those auditors may reasonably require for the purpose of their duties as auditors of the authorised investment business firm concerned; and

(b) in any other case, it shall be the duty of an authorised investment business firm, if required by its auditors to do so, to take all such steps as are reasonably open to it to obtain from the related undertaking or associated under taking such information and explanation and such accessas are mentioned in paragraph (a) of this subsection.

(13) A supervisory authority, following consultation with the other supervisory authority, may set out requirements in respect of the audit of authorised investment business firms and such requirements may relate to the communication of specified matters to the supervisory authority which may include matters relating to an associated undertaking or related undertaking.

(14) Any report requested by a supervisory authority under this section shall be prepared at the expense of the investment business firm concerned and shall be carried out and made within such time as may be specified by the supervisory authority or within such further time as the supervisory authority may allow.

(15) An associated undertaking or a related undertaking may apply to the Court for an order prohibiting the auditor of an authorised investment business firm from requesting particular information or classes of information under this section from that associated undertaking or related undertaking on the basis that it is unreasonable and unnecessary for the auditor to request that information.

34 False statements to auditors.

34.—(1) An officer or employee of an investment business firm or of an associated undertaking or related undertaking who knowingly or recklessly makes a statement to which this section applies that is misleading, false or deceptive in a material particular shall be guilty of an offence.

(2) This section applies to any statement made to the auditors of an investment business firm (whether orally or in writing) which conveys, or purports to convey, any information or explanation which they require under this Act, or are entitled so to require, as auditors of an authorised investment business firm.

(3) An officer or employee of an investment business firm or an associated undertaking or related undertaking who fails to provide to the auditors of an investment business firm, within such period of time as the auditor, after consultation with a supervisory authority, may specify, being not less than two days (not including a Saturday, a Sunday or a public holiday) from the making of the relevant inquiry, any information or explanations that the auditors require as auditors of an investment business firm and that is within the knowledge of or can be procured by the officer or employee shall be guilty of an offence.

(4) In a prosecution for an offence under this section it shall be a defence for the defendant to show that it was not reasonably possible for him to comply with the requirements under subsection (3) of this section to which the offence relates, within the time specified in that subsection, but that the defendant complied therewith as soon as was reasonably possible after the expiration of such time.

(5) In this section “officer”, in relation to an associated undertaking or related undertaking of an authorised investment business firm, includes an auditor.

35 Power to require a second audit.

35.—(1) If, on the basis of the information obtained through an audit, a supervisory authority has a real and substantial concern about the audited accounts of an authorised investment business firm, the supervisory authority may direct an authorised investment business firm to submit for examination by a person appointed by the supervisory authority any or all of the following, namely—

(a) any accounts on which the auditor of that authorised investment business firm has reported or any information which has been verified by that auditor, or

(b) any information as is specified in the direction,

and the person making the examination shall report his conclusions to the supervisory authority.

(2) The person carrying out an examination under this section shall have all the powers that are available to an auditor under this Act and under the Companies Acts and it shall be the duty of the auditor of an authorised investment business firm to afford that person all such assistance as he may require.

(3) Where a report made under this section relates to accounts which under any enactment are required to be sent to, or made available for inspection by, any person or to be delivered for registration, the report, or any part of it (or a note that such a report has been made) may be similarly sent, made available or delivered by the supervisory authority.

(4) An officer or employee of an authorised investment business firm or of an associated or related undertaking who knowingly or recklessly makes a statement to a person appointed under this section that is false or misleading or deceptive in a material particular shall be guilty of an offence.

(5) If any officer, employee, shareholder or agent of an authorised investment business firm or associated undertaking or related undertaking refuses to produce to the person appointed under this section any book or document which it is his duty under this section to produce, refuses to attend before the person appointed under this section when required to do so, or refuses to answer any question put to him by the person appointed under this section with respect to the affairs of an authorised investment business firm or associated undertaking or related undertaking, the person appointed under this section may certify the refusal under his hand to the Court and the Court may thereupon inquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, employee, shareholder or agent of the authorised investment business firm or associated or related undertaking and any statement which may be offered in defence, make any order or issue a direction as it thinks fit including a direction to the person concerned to attend or re-attend before the person appointed under this section or produce particular books or documents or answer a particular question put to him by the person appointed under this section, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the person appointed under this section.

(6) The expenses of and incidental to an examination under this section shall be defrayed in the first instance by the supervisory authority instigating the examination.

PART VI Probity, Codes of Conduct and Miscellaneous Provisions

36 Probity and competence of employed persons.

36.—(1) (a) If a supervisory authority considers that the probity of any officer or employee of an authorised investment business firm is liable to render him unsuitable to act as an officer or employee of an authorised investment business firm the supervisory authority may, on notice to the person concerned and on notice to the authorised investment business firm concerned, apply to the Court to issue a direction to direct the authorised investment business firm concerned to have the officer concerned removed or to dismiss the employee concerned from his employment.

(b) If a supervisory authority considers that any officer or employee of an authorised investment business firm is not competent in respect of matters of the kind with which the officer or employee would be concerned as an officer or employee of an authorised investment business firm, the supervisory authority may, on notice to the person concerned and on notice to the authorised investment business firm, apply to the Court to issue a direction to direct the authorised investment business firm concerned to have the officer or employee concerned removed or suspended for a specified period of time or to dismiss the employee concerned from their employment or to remove that employee from a particular area of employment.

(2) The Court may make such interim or interlocutory orders as it considers necessary under this section.

(3) Subject to subsection (5) of this section, a person who is the subject of a direction under subsection (1) of this section may not, without the written consent of a supervisory authority, be employed in any capacity in connection with an authorised investment business firm or any other entity which any supervisory authority supervises or regulates as part of its statutory functions.

(4) A direction under this section (to be known and in this section referred to as “a disqualification direction”) shall specify the date on which it is to take effect and a copy of it shall be served on the person to whom it relates.

(5) A supervisory authority may consent to the employment of a person who is the subject of a disqualification direction and such consent may—

(a) relate to employment with any entity which the supervisory authority supervises or regulates as part of its statutory functions generally or to employment of a particular kind,

(b) be given subject to conditions or requirements or both, and

(c) be varied by the supervisory authority from time to time.

(6) Any person who accepts or continues in any employment in contravention of a disqualification direction shall be guilty of an offence.

(7) An authorised investment business firm or any entity supervised by a supervisory authority under this Act or any other enactment shall take reasonable care not to employ or continue to employ a person in contravention of a disqualification direction.

(8) A person who is the subject of a disqualification direction may apply to the Court to revoke that direction at any time.

(9) A supervisory authority may apply to the Court to revoke a disqualification direction at any time.

(10) Where a supervisory authority refuses consent under subsection (5) of this section, the person who is the subject of a disqualification direction may appeal to the Court against that decision and the Court may make such order as it considers necessary including making an interim or interlocutory order.

37 Code of conduct.

37.—(1) Subject to subsection (2) of this section, a supervisory authority shall draw up and issue a code of conduct for investment business firms which shall include provisions which seek to ensure that an investment business firm—

(a) acts honestly and fairly in conducting its business activities in the best interests of its clients and the integrity of the market,

(b) acts with due skill, care and diligence in the best interests of its clients and the integrity of the market,

(c) has and employs effectively the resources and procedures that are necessary for the proper performance of its business activities,

(d) seeks from its clients information regarding their financial situations, investment experience and objectives as regards the services requested,

(e) makes adequate disclosure of relevant material information including commissions in its dealings with its clients,

(f) makes a reasonable effort to avoid conflicts of interests and, when they cannot be avoided, ensures that its clients are fairly treated, and

(g) complies with all regulatory requirements applicable to the conduct of its business activities so as to promote the best interests of its clients and the integrity of the market,

and the supervisory authority may impose conditions or requirements on an investment business firm or any class of investment business firm in respect of compliance with the provisions of such a code of conduct or any other code of conduct or rules of like effect.

(2) A code of conduct drawn up under subsection (1) of this section shall not apply to any class of certified person specified by the Bank in respect of which the Bank is satisfied that there are sufficient provisions in the rules of an approved professional body or elsewhere governing the conduct of such certified persons in respect of matters referred to in paragraphs (a) to (g) of that subsection or such other matters as the Bank deems necessary.

(3) Codes of conduct or rules of conduct referred to in subsection (1) or (2) of this section, may be applied in such a way or to such an extent as to take account of the status or experience of the person for whom the services are provided and the provisions of Council Directive 93/22/EEC of 10 May, 1993[^(1)].

(4) Codes of conduct or rules of conduct (referred to in subsection (1) or (2) of this section) may include criteria for distinguishing between different categories of investment business firms or of investor for the purposes of this section.

(5) A code of conduct drawn up by a supervisory authority under subsection (1) of this section may be revised from time to time by the supervisory authority.

38 Acquiring transactions.

38.—(1) In this Part, “acquiring transaction” shall be construed in accordance with subsection (2) of this section and “disposal” shall be construed in accordance with subsection (3) of this section.

(2) In this Part “acquiring transaction” means any direct or indirect acquisition by a person or more than one person acting in concert of shares or other interest in an authorised investment business firm:

Provided that after the proposed acquisition—

(a) the proportion of voting rights or capital held by the person or persons making the acquiring transaction would exceed a qualifying holding, or

(b) the proportion of voting rights or capital held by the person or persons making the acquiring transaction would reach or exceed 20 per cent., 33 per cent, or 50 per cent., or

(c) an authorised investment business firm would become a subsidiary of the acquirer.

(3) In this Part “disposal” means any direct or indirect disposal by a person or more than one person acting in concert of a qualifying holding or a disposal which would reduce such a qualifying holding so that the proportion of the voting rights or of the capital held by the person or persons would fall below 20 per cent., 33 per cent, or 50 per cent, or so that an authorised investment business firm would cease to be its subsidiary.

39 Notification of certain transactions.

39.—(1) Any person who proposes to make an acquiring transaction shall notify a supervisory authority in writing of the proposal as soon as may be and shall include with the notification such information concerning the proposed acquiring transaction as may be specified by a supervisory authority from time to time.

(2) Any person who proposes to make a disposal shall notify a supervisory authority in writing of the proposal as soon as may be and such notification shall include such information concerning the proposed disposal as may be specified by a supervisory authority from time to time.

(3) On becoming aware of any proposals of the type referred to in subsection (1) or (2) of this section, the authorised investment business firm concerned shall inform the appropriate supervisory authority of such proposed acquiring transactions or disposals that cause holdings to exceed or fall below a qualifying holding or 20 per cent., 33 per cent, or 50 per cent, of the capital held or voting rights, or that cause an authorised investment business firm to become, or cease to be, a subsidiary.

(4) Where, having received a notification under this section, the supervisory authority is of the opinion that in order to consider, for the purposes of this section, a proposed acquiring transaction it requires further information it may, within one month of the date of receipt by it of a notification, request such further information in writing from any one or more of the persons concerned with the transaction.

(5) A supervisory authority may approve of, or approve of subject to conditions or requirements or both, or may refuse to approve of an acquiring transaction.

40 Approval of acquiring transactions.

40.—An acquiring transaction shall not proceed until a supervisory authority has informed the authorised investment business firm and the party making the acquiring transaction in writing that it approves of the acquiring transaction or until three months have elapsed during which the supervisory authority has not refused to approve of the acquiring transaction, whichever first occurs, such period beginning on the date on which the supervisory authority first receives a notification under section 39 of this Act, or, where the supervisory authority requests further information from the person or persons concerned under section 39(4) of this Act, the date of receipt by the supervisory authority of such information.

41 Period for implementing acquiring transactions.

41.—Where a supervisory authority approves of an acquiring transaction, it may specify in writing a period for the implementation of that transaction.

42 Imposition of conditions or requirements in respect of proposed acquiring transactions.

42.—(1) An approval given by a supervisory authority to a proposed acquiring transaction shall be subject to such conditions or requirements or both as the supervisory authority may impose (being conditions or requirements which in the opinion of the supervisory authority are necessary for the proper and orderly regulation and supervision of investment business firms).

(2) A supervisory authority may, at any time, amend or revoke conditions or requirements or both referred to in subsection (1) of this section.

43 Limitation on validity of certain acquiring transactions.

43.—Subject to section 41 of this Act, an acquiring transaction shall only be valid if it is entered into within—

(a) 12 months of a supervisory authority giving its approval in writing to the transaction, or

(b) 12 months of the end of the three month period referred to in section 40 of this Act,

and, accordingly, any purported acquiring transaction which does not comply with either paragraph (a) or (b) of this section shall be invalid and—

(i) titles to any shares or other interest shall not pass, and

(ii) any consequential purported exercise of powers relating to such shares or other interest shall be invalid.

44 Refusal to approve acquiring transactions.

44.—(1) A supervisory authority shall refuse to approve an acquiring transaction where it is not satisfied as to the suitability of the person proposing to make the acquiring transaction or where the supervisory authority considers that the acquiring transaction is likely to be prejudicial to the sound and prudent management of an authorised investment business firm or the proper and orderly regulation and supervision of an authorised investment business firm or both.

(2) Where a supervisory authority refuses to approve an acquiring transaction or where a supervisory authority becomes aware of a proposed acquiring transaction of which it has not been notified under section 39 of this Act a supervisory authority may issue a direction under section 21 of this Act to the directors and those responsible for the management of an authorised investment business firm concerned.

45 Appeals to Court.

45.—(1) Where a supervisory authority informs a person making an acquiring transaction in accordance with section 39 of this Act that it—

(a) refuses to give its approval to that transaction, or

(b) gives its approval subject to conditions or requirements,

an appeal may be made by that person to the Court against the refusal or the conditions or requirements attached to the approval, as the case may be, within one month of that refusal or approval being so communicated.

(2) Where the Court allows the appeal it shall direct a supervisory authority to make a decision in accordance with the determination of the Court and a supervisory authority shall make its decision within the period of three months beginning on the date of the determination of the Court.

(3) Where the Court is satisfied, because of the nature or the circumstances of the case or otherwise in the interests of justice, that it is desirable it may decide that the whole or any part of proceedings under this section may be heard otherwise than in public.

46 Inquiries into certain acquiring transactions.

46.—(1) A supervisory authority may carry out such inquiries and obtain such information as it considers necessary to enable it to consider a proposed acquiring transaction.

(2) Any person who wilfully or knowingly obstructs or prevents inquiries by a supervisory authority under this section or knowingly or recklessly provides false or misleading information shall be guilty of an offence.

47 Obligation to inform a supervisory authority of shareholdings.

47.—(1) At least once in each year, authorised investment business firms shall inform a supervisory authority of the names of direct shareholders and persons possessing qualifying holdings and the sizes of such holdings.

(2) At least once in each year, authorised investment business firms, having made best efforts to ascertain the identity of all indirect shareholders and persons possessing qualifying holdings, shall inform the relevant supervisory authority of the names of such persons.

48 Contravention of terms of approval of acquiring transactions.

48.—(1) Nothing in any enactment shall be construed as relieving an authorised investment business firm or other person of any of its obligations to comply with subsections (1), (2) and (3) of section 39 of this Act.

(2) An order under section 201 or 203 of the Companies Act, 1963, in respect of a proposed amalgamation (being an acquiring transaction) shall not be made until a supervisory authority has given its approval to the acquiring transaction or the period (within which an acquiring transaction may not proceed) referred to in section 40 of this Act has elapsed without a supervisory authority having given or refused to give approval.

(3) A supervisory authority may, having regard to the proper and orderly regulation and supervision of investment business firms, the protection of investors and the requirements of Council Directive 93/22/EEC of 10 May, 1993[^(1)], following consultation with the Minister, specify circumstances in which, or classes of authorised investment business firm in respect of which, the duties and functions of the supervisory authority under sections 39 to 47, or of an investment business firm, need not be exercised.

49 Amendment of section 16 of Central Bank Act, 1989.

49.—(1) Section 16 of the Central Bank Act, 1989, is hereby amended by—

(a) the insertion after subsection (2)(l) (inserted by the Stock Exchange Act, 1995) of:

“(m) made to any approved professional body in respect of certified persons, for the purpose of monitoring compliance by investment business firms with rules or with conditions or requirements imposed by the Bank or by a supervisory authority (as defined in the Investment Intermediaries Act, 1995) or both, or where the Bank considers it necessary to do so for the proper and orderly regulation of investment business firms, or made to any supervisory authority,

(n) made to a Committee appointed under section 74 of the Investment Intermediaries Act, 1995, or to a person nominated or approved of by a supervisory authority in accordance with section 51(2) of the Investment Intermediaries Act, 1995,

(o) made to an inspector appointed by the Court under Part VIII of the Investment Intermediaries Act, 1995”,

(b) the deletion of subsection (6) (inserted by the Stock Exchange Act, 1995), and the insertion of the following subsection:

“(6) In this section, ‘statutory functions’ has the meaning assigned to it by section 2 of the Investment Intermediaries Act, 1995.”, and

(c) the insertion in subsection (2) (d) of “or insurance undertakings”, after “charged by law with the supervision of financial institutions (whether or not entitled to take money on deposit from the public)”.

(2) Notwithstanding section 16 of the Central Bank Act, 1989, a supervisory authority, where it has reasonable cause to believe that a criminal offence has been committed, may disclose to the Garda Síochána any information to enable further investigation of the alleged offence.

50 Investor compensation.

50.—An investment business firm shall not engage in business with clients and investors unless, and in accordance with any procedures set out in codes of conduct under this Act, it informs clients and investors of—

(a) whether or not there is a compensation fund or protection of comparable form, and

(b) the nature and level of protection, if any, available from any such fund.

51 Bonding.

51.—(1) Subject to subsection (5) of this section, each authorised investment business firm (other than a person who does not provide investment business services) shall hold a bond in a specified form to the value of £50,000 or, in years subsequent to the first accounting year, 25 per cent, of turnover by reference to the previous accounting year, whichever is the greater.

(2) The bond referred to in this section shall provide that in the event of the inability or failure of the authorised investment business firm to meet its financial obligations in relation to any sums of money received by it from, or on behalf of, its clients, a sum of money will become available to a person nominated or approved of by a supervisory authority to be applied for the benefit of any client of the authorised investment business firm who has incurred loss or liability because of the inability or failure of the authorised investment business firm to meet such financial obligations.

(3) The person nominated or approved of by the supervisory authority shall, with the consent of the supervisory authority and up to such sum as may be specified by the supervisory authority, be indemnified out of the proceeds of the bond in respect of such reasonable expenses as are incurred in carrying out the functions provided for in subsection (2) of this section.

(4) The person nominated or approved of by the supervisory authority shall keep all proper and usual accounts, including an income and expenditure account and balance sheet, of all moneys received by him on foot of a bond and of all disbursements made by him from any such moneys and of any amount in respect of the expenses referred to in subsection (3) of this section.

(5) The Minister, following consultations with the supervisory authorities, may prescribe that—

(a) arrangements in relation to the bond shall be entered into only with persons of a class or classes specified in the regulations,

(b) the bond shall be in such form and valid for such minimum period as may be specified in the regulations,

(c) a copy of the bond shall be displayed, for the information of the public, in a prominent position in all premises occupied by an authorised investment business firm and in which it carries on business as an authorised investment business firm, and the bond shall be mentioned in its sales literature and business note paper,

(d) a requirement to enter into a bond shall not apply to classes of authorised investment business firms specified in the regulations or in respect of portions of the business thereof, and such regulations may have regard to the nature of the business of the authorised investment business firm, the creditworthiness or credit rating of the authorised investment business firm, the capitalization or solvency of the investment business firm and the existence of any relevant compensation scheme or guarantees,

(e) in regard to authorised investment business firms which, because they are also insurance intermediaries, are required under Part IV of the Insurance Act, 1989, to be bonded, a single bond may, subject to such conditions as are prescribed, apply to both investment business services and insurance business and that the requirement to be bonded under Part IV of the Insurance Act, 1989, would thereby be met.

(6) Any amount or percentage rate in subsection (1) of this section may be altered as trie Minister may from time to time prescribe and different amounts and percentages may be prescribed for different classes of authorised investment business firms by reference to turnover or to such other matters as the Minister may consider appropriate, and the Minister may specify a maximum amount for a bond.

(7) For the purposes of this section—

“accounting year” means the year commencing on a date prescribed by the Minister and subsequent anniversary accounting years and the Minister may prescribe different dates for different classes of investment business firm;

“turnover” means the aggregate of all moneys required to be paid by an investment business firm into the bank accounts required under section 52 of this Act, together with the value of any investment instruments of clients coming into the control of the investment business firm, or where such accounts are not required under section 52 such amount as may be calculated in a manner specified by a supervisory authority.

52 Client money and investment instruments.

52.—(1) A supervisory authority may from time to time impose requirements on authorised investment business firms, or may impose requirements or may approve of rules in the rules of an approved professional body, where it considers it necessary to do so having examined the rules of the approved professional body and any relevant enactment regulating the holding of moneys on behalf of clients by persons regulated by that approved professional body, with respect to clients' money and clients' investment instruments and such rules or requirements (in this Act referred to as “client money requirements”) may include conditions under which investment business firms may hold money or investment instruments, or both, for clients.

(2) Without prejudice to the generality of subsection (1) of this section, client money requirements may include requirements or rules in relation to—

(a) the category or categories of investment business firm to whom such requirements or rules apply;

(b) the type or types of accounts to be opened and kept by an investment business firm arising from its business as an investment business firm;

(c) the rights, duties and responsibilities of an investment business firm in relation to money and investment instruments received, held, controlled or paid by it arising from its business as an investment business firm, including the lodgement to and withdrawal from a client account of client money and client investment instruments;

(d) the acknowledgements or statements to be issued by an investment business firm in respect of client money and client investment instruments received, held, controlled or paid by it arising from its business as an investment business firm;

(e) the circumstances in which money other than client money may be paid into accounts containing client money and the circumstances in which, and the persons for whom, money held in such accounts may be paid out;

(f) the safekeeping of client investment instruments and documents of title relating to such investment instruments;

(g) the use of nominee companies by investment business firms;

(h) client entitlements, including the treatment or retention of interest, income or profit arising from any client money or investment instrument or documents of title in such cases as may be specified;

(i) the extent to which such client money requirements apply to associated and related undertakings.

(3) Without prejudice to the generality of subsection (1) of this section and notwithstanding the provisions of subsection (2) of this section, an authorised investment business firm shall—

(a) keep at an office or offices within the State such books and records (including books of accounts) in respect of client money and client investment instruments as may be specified from time to time by a supervisory authority and notify the supervisory authority of the address of every office at which any such books or records are kept;

(b) ensure that any books or records required under this section are examined, at such intervals as may be specified by a supervisory authority, by an auditor who shall report to the supervisory authority and state whether in his opinion the provisions of the client money requirements imposed or rules approved under subsection (1) of this section and the provisions of this subsection have been complied with and on such other matters as may be specified in the client money requirements imposed under subsection (1) of this section;

and an authorised investment business firm which does not comply with the provisions of paragraph (a) of this subsection or which does not ensure that books and records kept in respect of client money and client investment instruments are examined by an auditor at such intervals as shall be specified by a supervisory authority shall be guilty of an offence.

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

(b) Books and records to be kept pursuant to this section shall be—

(i) in addition to any books or other records to be kept by or under any other section of this Act or any other enactment, and

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

(5) Without prejudice to the generality of subsection (1) of this section and notwithstanding the provisions of subsection (2) of this section, an authorised investment business firm which knowingly holds client money in an account or accounts with an institution other than an institution or type of institution as may be specified by a supervisory authority from time to time shall be guilty of an offence.

(6) An authorised investment business firm, other than a certified person, which fails to designate an account containing money entrusted to it or received by it for or on account of a client as an account to be known as a “section 52 account” in all financial records maintained by it shall be guilty of an offence.

(7) No liquidator, receiver, administrator, examiner, official assignee or creditor of an investment business firm shall have or obtain any recourse or right against client money or client investment instruments or documents of title relating to such investment instruments received, held, controlled or paid on behalf of a client by an investment business firm, until all proper claims of clients or of their heirs, successors or assigns against client money and client investment instruments or documents of title relating to such investment instruments have been satisfied in full.

(8) A person with whom an account is kept in pursuance of client money requirements or rules under this section shall not incur any liability as constructive trustee where money is wrongfully paid from the account unless the person permits the payment with knowledge that the payment is wrongful or having deliberately failed to make inquiries in circumstances in which a reasonable and honest person would have done so.

(9) It shall be an offence for a director, officer or employee of an investment business firm or any of them to misappropriate fraudulently any money or investment instruments held, controlled or paid on behalf of a client by that investment business firm.

53 Exemption from liability for damages.

53.—(1) A supervisory authority or any employee or officer of a supervisory authority or any member of any Board of a supervisory authority or any member of a committee appointed under section 74 of this Act shall not be liable in damages for anything done or omitted in the discharge or purported discharge of any of its functions under this Act unless it is shown that the act or omission was in bad faith.

(2) Without prejudice to the generality of subsection (1) of this section, the approval or revocation of approval or supervision or regulation of an approved professional body or of an approved representative body (within the meaning of section 27 (a) of this Act) or the approval, amendment, revocation or imposition of rules or the consent or refusal to consent to amendments of rules shall not constitute a warranty or other claim as to the solvency or performance of such bodies or of any investment business firm and neither the State nor a supervisory authority shall be liable in respect of any loss or losses arising out of the insolvency or default or performance of any investment business firm.

(3) Without prejudice to the generality of subsection (1) of this section, the authorisation, supervision, regulation or revocation of authorisation of an investment business firm under this Act shall not constitute a warranty as to the solvency or performance of an investment business firm and neither the State nor a supervisory authority shall be liable in respect of any loss or losses incurred through the insolvency, default or performance of the investment business firm.

54 Personal liability of officers.

54.—(1) If—

(a) an authorised investment business firm is being wound up and is unable to pay all of its debts and has contravened section 19, 52(3), 52(5) or 52(6) of this Act, and

(b) the Court considers that such contravention has contributed to the inability of an authorised investment business firm to pay all of its debts or has resulted in substantial uncertainty as to the amount, location, ownership or otherwise of the assets and liabilities of an authorised investment business firm or of the money or investment instruments of clients of the said authorised investment business firm or has substantially impeded its orderly winding-up,

the Court, on the application of the liquidator or receiver or a supervisory authority or any creditor or client or investor, may, if it thinks it proper to do so, declare that any one or more of the officers or former officers or both of the said authorised investment business firm who is or are in default shall be personally liable, without any limitation of liability, for all, or such part as may be specified by the Court, of the debts and other liabilities of the said authorised investment business firm.

(2) (a) Where the Court makes a declaration under subsection (1) of this section, it may give such directions as it thinks proper for the purpose of giving effect to the declaration and in particular may make provision for making the liability of any such person under the declaration a charge on any debt or obligation due from an authorised investment business firm to him, or on any mortgage or charge or any interest in any mortgage or charge on any assets of an authorised investment business firm held by or vested in him or any company or other person on his behalf, or any person claiming as assignee from or through the person liable under the declaration or any company or person acting on his behalf, and may, from time to time, make such further order as may be necessary for the purpose of enforcing any charge imposed under this subsection.

(b) In paragraph (a) of this subsection “assignee” includes any person to whom or in whose favour, by the directions of the person liable, the debt, obligation or mortgage was created, issued or transferred or the interest created but does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the grounds of which the declaration is made.

(3) The Court shall not make a declaration under subsection (1) of this section in respect of a person if it considers that—

(a) he took all reasonable steps to secure compliance by an authorised investment business firm with section 19, 52(3), 52(5) or 52(6) of this Act, or

(b) he had reasonable grounds for believing and did believe that a competent and reliable person, acting under the supervision or control of a director who has been formally allocated such responsibility, was charged with the duty of ensuring that section 19, 52(3), 52(5) or 52(6) of this Act was complied with and was in a position to discharge that duty.

(4) This section shall have effect notwithstanding that the person concerned may be liable to be prosecuted for a criminal offence in respect of the matters on the ground of which the declaration is to be made or that such person has been convicted of such an offence.

(5) In this section “officer”, in relation to an authorised investment business firm, includes a person who has been convicted of an offence under section 34 or 79 (7) of this Act or section 194 of the Companies Act, 1990 in relation to a statement concerning the keeping of proper accounting records by an authorised investment business firm concerned.

(6) A person who, being a director of an authorised investment business firm, fails to take all reasonable steps to secure compliance by an authorised investment business firm with the requirements of section 19, 52 (3), 52(5) or 52(6) of this Act, or has by his own wilful act been the cause of any default by an authorised investment business firm thereunder, shall be guilty of an offence:

Provided, however, that—

(a) in any proceedings against a person in respect of an offence under this section consisting of a failure to take reasonable steps to secure compliance by an authorised investment business firm with the requirements of this section, it shall be a defence to prove that he had reasonable grounds for believing and did believe that a competent and reliable person was charged with the duty of ensuring that those requirements were complied with and was in a position to discharge that duty, and

(b) a person shall not be sentenced to imprisonment for such an offence unless, in the opinion of the Court, the offence was committed wilfully.

PART VII Approved Professional Bodies

55 Interpretation (Part VII).

55.—For the purposes of this Part—

“approved professional body” means a body which—

(a) is representative of a profession of solicitors, accountants or representative of a profession with similar functions and has functions in regard to the regulation of members of the relevant profession, or is capable of having such functions; and

(b) stands approved under section 56 of this Act;

“certified person” means a person who—

(a) being an individual, is a member of or is regulated by an approved professional body, or

(b) not being an individual, is a person managed and controlled by one or more individuals each of whom is regulated by that approved professional body or another professional body and at least one of whom is a member of or is regulated by the approved professional body concerned,

and has been granted and holds a valid certificate under the rules of that professional body deeming that person to be a fit and proper person to carry on investment business services or provide investment advice or both and specifying any conditions, limits or constraints on the type or the extent of such services which the person in receipt of the certificate shall comply with and which the approved professional body deems appropriate in the interests of the proper regulation of certified persons and the protection of investors or, in the case that the Law Society of Ireland is acting as an approved professional body, a solicitor in respect of whom a practising certificate (within the meaning of the Solicitors Acts, 1954 to 1994) is in force;

“in an incidental manner” means in the course of and in conjunction with but subordinate to a professional activity other than the provision of any investment business service;

“rules” includes all of the rules, regulations, codes of practice or ethics or other conditions governing the operations of a professional body and those of its members and persons regulated by it.

56 Grant of approval to operate as an approved professional body.

56.—(1) Subject to the provisions of this section, the Bank may grant or refuse to grant to any professional body an approval to operate as an approved professional body.

(2) The grant of an approval under subsection (1) of this section may be given unconditionally or may be given subject to such conditions or requirements or both as the Bank considers fit.

(3) Whenever the Bank refuses to approve of a professional body under this section, it shall serve notice on that professional body, and on the Minister, of its refusal to grant approval and state the reasons therefor.

(4) An application for approval under subsection (1) of this section shall be in such form and contain such particulars as the Bank shall specify from time to time and, without prejudice to the generality of the aforesaid, shall include a copy of any charters, memorandum and articles of association, or other constitutional document, of the applicant and a copy of the rules and regulations under which the applicant proposes to conduct its business insofar as they affect or touch upon the regulation of investment business firms or investment business services or investment advice.

(5) A professional body which applies for approval under this section shall not be approved of by the Bank unless—

(a) it satisfies the Bank that any charters, memorandum of association and articles of association or other constitutional document and the rules of the applicant body together with any powers granted to the body or available to it under any enactment contain sufficient provisions so as to enable it to operate in accordance with this Act and in accordance with any conditions or requirements or both as the Bank may impose;

(b) it satisfies the Bank as to the probity and competence of those of its managers who are primarily concerned with the regulation and supervision of certified persons;

(c) (i) its rules or charters or other constitutional documents contain sufficient provision for the publication of information regarding inquiries or proceedings regarding any disciplinary matter investigated by the professional body concerned where the proceedings are concerned with the provision of investment business services; or

(ii) such matters are regulated by any other enactment;

(d) it has sufficient powers under its rules or otherwise for the regulation of the carrying on of investment business services or investment advice by persons certified by it for the purposes of this Act;

(e) it has adequate arrangements and resources for the effective monitoring of the activities of certified persons and for the enforcement of rules and conditions regulating the persons regulated by it and there is sufficient provision in its rules or under any enactment to provide for the withdrawal or suspension of certificates issued;

(f) where not based in the State it satisfies the Bank that it has a similar legal status in its home Member State or third country as that of approved professional bodies in the State, and that its members or persons regulated by it in that country are entitled to act as investment business firms.

(6) The Bank may, at any time prior to the grant or refusal of approval, request further information from an applicant or may instruct an authorised officer to make such inquiries or carry out such investigation as may be necessary for the purpose of evaluating an application under this section and such inquiries or investigations shall be carried out in accordance with this Act.

(7) Any proposed amendment or addition that relates directly or indirectly to regulation of investment business services or to investment advice to the memorandum of association or articles of association or other constitutional document or rules of an approved professional body shall be made only with the prior consent in writing of the Bank, insofar as they relate to the provision of investment business services or investment advice.

(8) A professional body which has made an application under this section for approval shall be informed as soon as may be after the date of receipt of the application for approval or after the entry into force of this section, whichever is the later, whether or not the approval has been granted.

(9) It shall be an offence for a professional body to apply for approval under this section knowingly or recklessly using false or misleading information or knowingly or recklessly making false or misleading statements.

(10) Subject to any enactments governing its activities, an approved professional body shall establish and maintain procedures to investigate complaints against itself and certified persons in relation to the provision of investment business services or investment advice or to codes of practice established under this Act.

(11) Any appointment to the post of manager of any person to be concerned primarily with the supervision of certified persons on or after the granting of an approval under this section shall be subject to the prior approval in writing of the Bank, which said approval shall not be given unless the approved professional body satisfies the Bank as to the probity and competence of the proposed appointee.

57 Interim approval.

57.—(1) Notwithstanding section 56 of this Act, the Bank may, where it considers it appropriate in the interests of the proper and orderly regulation of investment business firms or the protection of investors or both, grant an interim approval to a professional body and that body shall be deemed to be an approved professional body, on the granting of such an interim approval for a specified period, and shall stand approved of under this Act until the Bank has granted or refused an approval to it, or until the specified period has expired:

Provided that, no later than six months after the coming into operation of this section or after the granting of an interim approval, it applies to the Bank under section 56 of this Act for an approval.

(2) Pending a decision by the Bank to approve or not to approve of a professional body, or during any period in which an interim approval under subsection (1) of this section is in force, the Bank may do either or both of the following, namely—

(a) impose on it such conditions or requirements or both as it thinks fit relating to the proper and orderly regulation and supervision of the approved professional body or in relation to the protection of investors or in relation to both or in respect of associated undertakings or related undertakings, or both;

(b) issue directions under this Act.

(3) An approved professional body may, subject to any conditions or requirements laid down by the Bank, and with the consent of the Bank, issue interim certificates for a period of not more than six months to any person regulated by it and provided that the person complies with any conditions or requirements laid down by the approved professional body it shall be deemed to be a certified person during the period specified by the interim certificate.

(4) The approved professional body may appeal to the Court against the imposition of any condition or requirement or the giving of any direction under this section.

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

58 Imposition of conditions or requirements on approved professional bodies.

58.—(1) Without prejudice to section 56 of this Act, where the Bank grants an approval under that section, or consents to any proposed amendment or addition to a memorandum or article of association or rules, it may do all or any of the following, in the interests of the proper and orderly regulation and supervision of approved professional bodies or certified persons or both:

(a) make its approval or consent subject to such conditions or requirements or both as it considers fit;

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

(c) at any time after its approval, impose conditions or requirements or both on an approved professional body and either amend or revoke any condition or requirement or both imposed under this paragraph or paragraph (a) or (b) of this subsection;

(d) at any time after its approval, impose a requirement that the approved professional body add, amend or revoke rules of that approved professional body where these relate to the provision of investment business services or investment advice by certified persons or the regulation and supervision of certified persons;

(e) where applicable, at any time after its approval, impose a requirement that the approved professional body add to or amend any memorandum of association or articles of association of that approved professional body:

Provided that the said conditions or requirements do not contravene any guidelines in that behalf which may be issued to the Bank, from time to time, by the Minister, in the interests of the proper and orderly regulation and supervision of approved professional bodies or of certified persons or both, with the consent of the Minister for Enterprise and Employment, and insofar as an approved professional body of lawyers may be concerned, the Minister for Justice, and 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 approved professional body,

(b) all approved professional bodies,

(c) a class of approved professional body,

(d) a specified period of time or times,

(e) all certified persons,

(f) a particular class of certified person,

(g) an associated undertaking or related undertaking of an approved professional body,

(h) any matter, as the Bank may consider appropriate, in the interests of the proper and orderly regulation and supervision of approved professional bodies and certified persons and the protection of investors or both.

(3) An approved professional body or certified person 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.

59 Refusal to consent to amendment of rules, etc.

59.—Whenever the Bank refuses in accordance with section 56 (7) of this Act to consent to an amendment or addition to the memorandum of association, or articles of association, or both, or to the rules or other constitutional document of an approved professional body, it shall serve notice on the approved professional body concerned stating that it refuses to consent to the amendment or addition and setting out the reasons for the refusal in the notice.

60 Appeals on refusal to grant approval, etc.

60.—(1) A professional body on whom a notice has been served under section 56 (3) of this Act or an approved professional body on whom a notice has been served under section 59 of this Act may, within 21 days of receipt of the notice, appeal to the Minister and the Minister shall consider any such appeal and may uphold or reject it.

(2) When considering an appeal under this section, the Minister shall consult, within three months of the commencement of the hearing of the appeal, with the Minister for Enterprise and Employment (and where appropriate with the Minister for Justice), the Bank or the professional body concerned.

(3) If the Minister, with the consent of the Minister for Enterprise and Employment, and where appropriate the Minister for Justice, upholds an appeal made under this section the Minister shall inform the Bank of the decision and shall publish notice of that decision in the Iris Oifigiúil within 28 days of such decision being communicated to the Bank and the Bank shall grant approval of the proposed approved professional body or consent to the proposed amendment of or addition to the memorandum of association, articles of association or rules of the approved professional body.

(4) An appeal under this section shall be accompanied by the prescribed fee.

(5) The Public Offices Fees Act, 1879, shall not apply to any fees charged under this section.

61 Revocation of approval.

61.—(1) The Bank may revoke its approval of an approved professional body in all or any of the following circumstances, namely, where—

(a) a request has been made to it in that behalf by an approved professional body,

(b) an approved professional body—

(i) has failed to operate as an approved professional body within 12 months of the date on which the approval to be an approved professional body was granted,

(ii) has failed to operate as an approved professional body for a period of more than 6 months,

(iii) is being wound up.

(2) Without prejudice to the power of the Bank to revoke an approval under subsection (1) of this section, the Bank may apply to the Court, in a summary manner, for an order revoking the approval of an approved professional body in any or all of the following circumstances, namely, where—

(a) it is expedient to do so in the interest of the proper and orderly regulation of approved professional bodies or certified persons or in order to protect investors or in any or all of these circumstances;

(b) an approved professional body has been convicted on indictment of any offence under this Act or any Act under which the Bank exercises statutory functions or any offence involving fraud, dishonesty or breach of trust;

(c) circumstances have materially changed since the granting of approval to that approved professional body such that, if an application for approval was made at the time of the application to the Court, a different decision would be taken in relation to the application for approval;

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

(e) an approved professional body has failed to comply to a material degree with a requirement of this Act;

(f) an approved professional body fails to comply with any or all of the conditions or requirements which were imposed when approval was granted or which were subsequently imposed;

(g) an approved professional body becomes unable or, in the opinion of the Bank, is likely to become unable to meet its obligations to its creditors or suspends payments lawfully due;

(h) the directors and managers of an approved professional body who are primarily concerned with the regulation of certified persons are no longer deemed by the Bank to fulfil the conditions of competence and probity required by section 56 of this Act;

(i) an approved professional body has so organised itself that the approved professional body 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 Bank under this Act.

(3) When the Bank proposes to revoke the approval of an approved professional body or proposes to apply to the Court for an order to revoke approval of an approved professional body the following procedure shall apply, namely, the Bank shall serve notice on the approved professional body concerned of its intention and shall state its reasons in the said 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) Where approval of an approved professional body is revoked and where the approved professional body concerned is not a company which is being wound up—

(a) the former approved professional body and its members shall continue to be subject to the duties and obligations imposed by this Act until all the liabilities, duties and obligations of the said approved professional body have been discharged to the satisfaction of the Bank,

(b) the former approved professional body shall, as soon as possible, after the revocation, notify the Bank, its members and such other persons, if any, as the Bank indicates are to be notified of the measures being taken to discharge without undue delay the liabilities, duties and obligations of the said approved professional body,

(c) in the case where—

(i) the former approved professional body has notified the Bank in accordance with paragraph (b) of this subsection and the Bank is of the opinion that the measures being taken or proposed to be taken for the purposes of that paragraph are not satisfactory, or

(ii) the former approved professional body has not so notified the Bank and the Bank is of the opinion that the said approved professional body has failed to so notify as soon as possible after the approval is revoked, or

(iii) the Bank is of the opinion that the former approved professional body has failed to take all reasonable steps to notify persons which the Bank has indicated, under paragraph (b) of this subsection, are to be notified,

then, subject to subsection (9) of this section, the Bank may give a direction in writing to the former approved professional body for such period, not exceeding six months, prohibiting the former approved professional body 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 approved professional body or of members in any manner;

(III) engaging in any transaction or class of transactions or specified transaction;

(IV) making payments;

without the prior authorisation of the Bank, and the Bank may further direct that former approved professional body within two months of the initial direction to prepare and submit to the Bank for its approval a scheme for the orderly discharge of the liabilities, duties and obligations concerned.

(6) Where the approval of an approved professional body is revoked and the approved professional body is a company which is being wound up—

(a) the liquidator of the former approved professional body shall, in addition to his duties and obligations in respect of the winding up, be subject to the duties and obligations to which the former approved professional body would be subject if it were a former approved professional body to which subsection (5) of this section relates and that subsection shall for the purposes of this subsection be construed accordingly;

(b) notwithstanding paragraph (a) of this subsection, the Bank may, where its approval of an approved professional body is revoked and where the Bank considers it appropriate in the circumstances, remove, on giving notice to that effect in writing to the former approved professional body, the duties and obligations imposed on the liquidator concerned to comply with paragraph (b) of subsection (5) of this section and may impose in writing on that liquidator such further duty or obligation which corresponds to that set out in paragraph (b) of that subsection;

(c) nothing in this subsection shall be construed as affecting any duty or obligation under this Act of any of the members of the former approved professional body concerned.

(7) The Bank shall publish notice of any revocation of an approval of an approved professional body in the Iris Oifigiúil within 28 days of revocation.

(8) An approved professional body whose approval has been revoked under this Act shall cease to operate as an approved professional body.

(9) Where the Bank gives a direction under subsection (5) 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 or set aside or vary the direction on such terms and for such period as the Court thinks fit.

(10) The Bank shall not exercise its powers under subsection (2)(h) of this section unless it has given the approved professional body an opportunity to remove the director or manager or otherwise deal with the concerns of the Bank in relation to the probity or competence of the person concerned within such period of time as the Bank may specify.

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

62 Maintenance of books and records.

62.—(1) (a) An approved professional body shall keep at an office or offices approved by the Bank such books and records (including books of accounts) as may be specified from time to time by the Bank.

(b) An approved professional body shall notify the Bank of the address of every office at which any such books or records are kept.

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

(2) The Bank may specify different books and records for the purpose of this section in relation to different approved professional bodies or different classes of approved professional body.

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

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

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

63 Authorisation of certified persons.

63.—A certified person shall be deemed to be an authorised investment business firm under this Act: Provided that—

(a) any investment business services provided by that person are so provided, in an incidental manner and within the limits, conditions or constraints of the certificate granted by the approved professional body, and

(b) the certified person has never had an authorisation revoked under section 16(2) of this Act and not re-instated and that no manager or officer or director of that person has ever been a manager, officer or director of an investment business firm which has had its authorisation revoked, under section 16(2) of this Act and not reinstated.

PART VIII Enforcement, Offences and Penalties

64 Authorised officers.

64.—(1) The Governor of the Bank or the Minister for Enterprise and Employment or any other person appointed by any of them for that purpose may authorise in writing such and so many persons to be authorised officers for the purposes of this Act and may revoke such authorisations.

(2) Every person who is appointed to be an authorised officer pursuant to this section shall be furnished with a certificate of appointment and shall, if so required, when exercising any power conferred on him by this Act, produce such certificate or a copy of it duly authenticated by the Governor of the Bank or the Minister for Enterprise and Employment or such other person appointed by the Governor of the Bank or the Minister for Enterprise and Employment for that purpose and a form of personal identification.

65 Powers of authorised officers.

65.—(1) The powers conferred by this section may be exercised in respect of an approved professional body or a body which has applied to be an approved professional body, a proposed investment business firm, an authorised investment business firm, an investment business firm or a former authorised investment business firm, or a person whom a supervisory authority has reasonable grounds to believe has provided or is providing investment business services or investment advice, or an associated undertaking or related undertaking and these persons shall be referred to in this section as “persons to whom this section applies”.

(2) An authorised officer may, for the purpose of obtaining any information which a supervisory authority may require to enable it to exercise any of its functions under this Act, do any one or more of the following things:

(a) at all reasonable times enter any premises, at which there are reasonable grounds to believe that any investment business service or any activity in connection with an investment business firm or an approved professional body is, or has been, carried on, or that books, records or other documents in relation to such business or activities are kept, and search and inspect the premises and any books, records or other documents on the premises;

(b) secure for later inspection any premises or any part of a premises in which books, records or other documents are kept or there are reasonable grounds for believing that such books, records or other documents are kept;

(c) inspect and take copies of or extracts from, or, subject to a warrant being issued for that purpose by a judge of the District Court, remove for a reasonable period for further examination, any books, records or other documents which the officer finds in the course of inspection;

(d) require any person who carries on such investment business services or investment advice and any person employed in connection therewith to give to the authorised officer such information as the officer may reasonably require in relation to any entries in such books, records or other documents;

(e) require any such person to give to the officer any information which the authorised officer may require in regard to the investment business service or investment advice or in regard to the persons carrying on such investment business service or investment advice or employed in connection therewith;

(f) require any such person to give to the authorised officer any other information which the authorised officer may reasonably require in regard to such investment business service or investment advice;

(g) require any person by or on whose behalf data equipment is or has been used or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to afford the authorised officer reasonable assistance in relation thereto;

(h) summon, at any reasonable time, any other person employed in connection with the investment business service or investment advice to give to the authorised officer any information which the officer may reasonably require in regard to such activity and to produce to the authorised officer any books, records or other documents which are in that person's power or control;

(i) require any person employed in the premises to prepare a report on specified aspects of the business of the persons to whom this section applies or to explain entries in any documents or other materials furnished.

(3) A person who has in his power, possession or procurement any books, records or other documents aforesaid shall—

(a) produce them at the request of an authorised officer and permit him to inspect and take copies of, or extracts from, them,

(b) at the request of an authorised officer, give any information which may be reasonably required with regard to them, and

(c) give such other assistance and information to an authorised officer as is reasonable in the circumstances.

(4) Where any person from whom production of a book, record or other document is required claims a lien thereon the production of it shall be without prejudice to the lien.

(5) Nothing in this section shall compel the production by a barrister or solicitor of a book, record or other document containing a privileged communication made by him or to him in that capacity or the furnishing of information contained in a privileged communication so made.

(6) An investment business firm, an approved professional body and any person carrying on the business of an associated or related undertaking to which this section relates shall each furnish to a supervisory authority—

(a) at such times as the supervisory authority may specify from time to time such information and returns concerning the business to which the authorisation or business of the associated undertaking or related undertaking relates as the supervisory authority may specify from time to time (being information and returns which the supervisory authority considers it necessary to have for the due performance of its functions under this Act), and

(b) within such period as the supervisory authority may specify, any information and returns (not being information or returns specified under paragraph (a) of this subsection) concerning the business to which the authorisation or business of the associated undertaking or related undertaking relates that the supervisory authority may request in writing (being information and returns which the supervisory authority considers it necessary to have for the due performance of its functions under this Act).

(7) This section shall apply to the business of an associated undertaking or related undertaking to the extent only that the information and returns sought by the supervisory authority are, in the opinion of the supervisory authority, materially relevant to the proper appraisal of the business of the investment business firm to which the associated or related undertaking relates.

(8) A requirement under this section may be imposed on a person to whom this section applies outside the State.

(9) The duty to produce or provide any information, document, material or explanation extends to an examiner, liquidator, receiver, official assignee or any person who is or has been an officer or employee or agent of the persons to whom this section applies, or who appears to the supervisory authority or the authorised officer to have the information, document, material or explanation in his possession or under his control.

(10) An authorised officer appointed under section 64 of this Act, where he considers it necessary, may be accompanied by a member of the Garda Síochána when performing any powers conferred on an authorised officer by this Act.

(11) A person shall not obstruct or interfere with an authorised officer in the exercise of his powers under this Act.

(12) A person shall comply with any request or requirement of an authorised officer under this Act.

(13) In this section—

(a) “specified” means specified under this section,

(b) “agent”, in relation to a person to whom this section applies or any associated or related undertaking, includes past as well as present agents, as the case may be, and includes its bankers, accountants, solicitors, auditors and its financial and other advisors, whether or not those persons are officers or persons to whom this section applies.