S.I. No. 50/1999 - European Communities (Undertakings For Collective Investment in Transferable Securities) (Amendment) Regulations, 1999.
I, MARY HARNEY, Minister for Enterprise, Trade and Employment, in the exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 ( No. 27 of 1972 ), and for the purpose of giving further effect to Council Directive No. 85/611/EEC of 20 December, 19851 , as amended by Council Directive No. 88/220/EEC of 22 March, 19882 and by European Parliament and Council Directive No. 95/26/EC of 29 June, 19953 , hereby make the following regulations: | ||||||||
1. (1) These Regulations may be cited as the European Communities (Undertakings for Collective Investment in Transferable Securities) (Amendment) Regulations, 1999. | ||||||||
(2) These Regulations shall come into operation on the 1st day of March 1999. | ||||||||
2. In these Regulations “Regulations of 1989” means the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 ( S.I. No. 78 of 1989 ). | ||||||||
3. The Regulations of 1989 are hereby amended— | ||||||||
(a) in Regulation 2(1), by the substitution for the definition of “the Directive” of the following definition: | ||||||||
“‘the Directive’ means the Council Directive of 20 December, 1985 (85/611/EEC) on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) as amended by Council Directive of 22 March, 1988 (88/220/EEC) and European Parliament and Council Directive of 29 June, 1995 (95/26/EC);”. | ||||||||
(b) after Regulation 5, by the insertion of the following regulation: | ||||||||
“Application of certain provisions | ||||||||
5A. Regulations 83(2)(dd), (2A) and (8), and 95 to 97E (inserted by the European Communities (Undertakings for Collective Investment in Transferable Securities) (Amendment) Regulations, 1999 ( S.I. No. 50 of 1999 )) shall apply without prejudice to the provisions of section 16 (as amended) of the Central Bank Act, 1989 (No. 16 of 1989).”. | ||||||||
(c) in Regulation 83— | ||||||||
(i) in paragraph (2), by the insertion after sub-paragraph (d) of the following sub-paragraph: | ||||||||
“(dd) has reason to believe that any fact or decision concerning a UCITS is liable to— | ||||||||
(i) constitute a material breach of the laws, regulations or administrative provisions which lay down the conditions governing authorisation or which specifically govern pursuit of the activities of UCITS, or | ||||||||
(ii) affect the continuous functioning of the UCITS, or | ||||||||
(iii) lead to a refusal by the auditor to certify the accounts of the UCITS or to the expression of qualifications by the auditor. | ||||||||
or”. | ||||||||
(ii) by the insertion after paragraph (2) of the following paragraph— | ||||||||
“(2A) (a) The auditor of an authorised UCITS shall report to the Bank any facts or decisions referred to in paragraph (2)(dd) of which the auditor becomes aware while conducting an audit of an undertaking which has close links resulting from a control relationship with the UCITS concerned. | ||||||||
(b) For the purposes of this paragraph ‘close links’ means— | ||||||||
(i) an arrangement whereby two or more persons are linked by— | ||||||||
(I) ‘participation’, which means the ownership, direct or by way of control, of 20 per cent. or more of the voting rights or capital of an undertaking, or | ||||||||
(II) ‘control’, which means the relationship between a parent undertaking and a subsidiary undertaking, in all the cases referred to in Article 1(1) and (2) of Directive No. 83/349/EEC4 or a similar relationship between any person and an undertaking, and any subsidiary of a subsidiary shall also be considered a subsidiary of the parent undertaking which is at the head of those undertakings. | ||||||||
and | ||||||||
(ii) an arrangement whereby two or more persons are permanently linked to one and the same person by a control relationship.”. | ||||||||
and | ||||||||
(iii) by the insertion after paragraph (7) of the following paragraph— | ||||||||
“(8) Any communication made in good faith to the Bank by an auditor under paragraph (2)(dd) or (2A) shall not constitute a breach of any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision and shall not involve the auditor in liability of any kind.”. | ||||||||
(d) by the substitution for Regulations 95, 96 and 97 of the following regulations: | ||||||||
“Professional secrecy | ||||||||
95. (1) All persons who work for or who have at any time worked for the Bank, and auditors and experts instructed at any time by the Bank, shall be bound by the obligation of professional secrecy and no confidential information which they may receive in the course of their duties shall be divulged to any person or authority whatsoever, save in summary or aggregated form such that UCITS, management companies and trustees cannot be individually identified without prejudice to the institution of, or otherwise for the purposes of, any criminal proceedings, whether under these Regulations or otherwise, and save as permitted by Regulations 96 and 97. | ||||||||
(2) Notwithstanding paragraph (1), when a UCITS, management company or trustee has been declared bankrupt or is being compulsorily wound up, confidential information which does not concern third parties involved in attempts to rescue the UCITS, management company or trustee concerned may be divulged in civil or commercial proceedings. | ||||||||
Application of professional secrecy to information exchanged with other competent authorities | ||||||||
96. (1) Subject to paragraph (2), nothing in Regulation 95 shall preclude the Bank and the competent authorities of other Member States from exchanging information in accordance with the Directive or other Directives applicable to— | ||||||||
(a) UCITS, | ||||||||
(b) management companies, or | ||||||||
(c) trustees. | ||||||||
(2) The information referred to in paragraph (1) shall be subject to the conditions of professional secrecy imposed by Regulation 95. | ||||||||
(3) Co-operation agreements may be concluded which provide for exchanges of information in relation to UCITS, management companies and trustees with the competent authorities of third countries provided that the information so communicated is covered by guarantees of professional secrecy at least equivalent to those provided for in these Regulations. | ||||||||
Restriction on use of information received from other Member States | ||||||||
97. Without prejudice to the institution of, or otherwise for the purposes of, any criminal proceedings, whether under these Regulations or otherwise, where the Bank receives confidential information under Regulation 95 or 96(1) it may use it only in the course of its duties— | ||||||||
(a) to check that the conditions governing the taking-up of the business of UCITS, management companies or trustees are met and to facilitate the monitoring of the conduct of that business, administrative and accounting procedures and internal control mechanisms, | ||||||||
(b) to impose sanctions, | ||||||||
(c) in administative appeals against decisions by the Bank, or | ||||||||
(d) in court proceedings initiated under Regulation 101 or 105. | ||||||||
Exchanges of information between the Bank and other competent authorities | ||||||||
97A. (1) Subject to the conditions of professional secrecy imposed by Regulation 95, nothing in that Regulation and in Regulation 97 shall preclude— | ||||||||
(a) the exchange of information between the Bank, the competent authorities in other Member States and all or any of the following— | ||||||||
(i) authorities, in the State or in other Member States or in non-Member States where authorised by law, with public responsibility for the supervision of credit institutions, investment undertakings, insurance undertakings and other financial organisations and the authorities responsible for the supervision of financial markets, | ||||||||
(ii) bodies, in the State or in other Member States or in non-Member States where authorised by law, involved in the liquidation or bankruptcy of UCITS, management companies or trustees and other similar procedures, | ||||||||
(iii) persons, in the State or in other Member States or in non-Member States where authorised by law, responsible for carrying out statutory audits of the accounts of insurance undertakings, credit institutions, investment undertakings and other financial institutions. | ||||||||
in the performance of their supervisory functions. | ||||||||
or | ||||||||
(b) the disclosure to bodies, in the State or in other Member States or in non-Member States where authorised by law, which administer compensation schemes of information necessary for the performance of their functions. | ||||||||
(2) Notwithstanding Regulations 95, 96 and 97, exchanges of information may take place between the Bank and— | ||||||||
(a) the authorities, in the State or in other Member States or in non-Member States where authorised by law, responsible for overseeing the bodies involved in the liquidation and bankruptcy of financial undertakings and other similar procedures, or | ||||||||
(b) the authorities, in the Strate or in other Member States or in non-Member States where authorised by law, responsible for overseeing persons charged with carrying out statutory audits of the accounts of insurance undertakings, credit institutions, investment firms and other financial institutions. | ||||||||
(3) The exchange of information referred to in paragraph (2) shall be subject to compliance with the following conditions: | ||||||||
(a) the information shall be for the purpose of performing the task of overseeing referred to in subparagraphs (a) and (b) of paragraph (2); | ||||||||
(b) the information received in this context shall be subject to the conditions of professional secrecy imposed by Regulation 95; | ||||||||
(c) where the information originates in another Member State, it shall not be disclosed without the express agreement of the competent authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement. | ||||||||
(4) The Bank shall communicate to the Commission and to the other Member States the names of the authorities which may receive information pursuant to this Regulation. | ||||||||
Exchanges of information between company law authorities | ||||||||
97B.—(1) Notwithstanding Regulations 95, 96 and 97 and subject to paragraph (2), exchanges of information between the Bank and the authorities or bodies which are responsible under the law for the detection and investigation of breaches of company law shall be permitted. | ||||||||
(2) The exchange of information referred to in paragraph (1) shall be subject to compliance with the following conditions: | ||||||||
(a) the information shall be for the purpose of performing the task referred to in paragraph (1); | ||||||||
(b) information received in this context shall be subject to the conditions of professional secrecy imposed by Regulation 95; | ||||||||
(c) subject to paragraph (4), where the information originates in another Member State, it shall not be disclosed without the express agreement of the competent authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement. | ||||||||
(3) Where the authorities or bodies referred to in paragraph (1) perform their task of detection or investigation with the aid, in view of their specific competence, of persons appointed for that purpose and not employed in the public sector, the possibility of exchanging information provided for in that paragraph may be extended to such persons under the conditions specified in paragraph (2). | ||||||||
(4) The authorities or bodies referred to in paragraph (1) shall communicate to the competent authorities which have disclosed the information the names and precise responsibilities of the persons to whom it is to be sent. | ||||||||
(5) The Bank shall communicate to the Commission and to the other Member States the names of the authorities or bodies which may receive information pursuant to this Regulation. | ||||||||
Exchanges of information between monetary authorities | ||||||||
97C.—(1) Subject to paragraph (2), nothing in these Regulations shall prevent the Bank from transmitting to central banks and other bodies with a similar function in their capacity as monetary authorities information intended for the performance of their tasks, nor prevent such authorities or bodies from communicating to the Bank such information as they may need for the purposes of Regulation 97. | ||||||||
(2) Information received under this Regulation shall be subject to the conditions of professional secrecy imposed by these Regulations. | ||||||||
Exchanges of information between clearing house authorities | ||||||||
97D.—(1) Subject to paragraphs (2) and (3), nothing in these Regulations shall prevent the Bank from communicating the information referred to in Regulations 95, 96 and 97 to a clearing house or other similar body recognised in the State for the provision of clearing or settlement services in a market in a Member State if the Bank considers that it is necessary to communicate the information in order to ensure the proper functioning of those bodies in relation to defaults or potential defaults by market participants. | ||||||||
(2) Information received under this Regulation shall be subject to the conditions of professional secrecy imposed by Regulation 95. | ||||||||
(3) Information received under Regulation 96(1) shall not be disclosed in the circumstances referred to in this Regulation without the express consent of the competent authorities which disclosed it. | ||||||||
Exchanges of information with Departments of State | ||||||||
97E.—(1) Notwithstanding Regulations 95 and 97 and subject to paragraph (2), the disclosure by the Bank of the information referred to in paragraph (11) (inserted by Directive No. 95/26/EEC) of Article 50 of the Directive to Departments of State responsible for legislation on the supervision of UCITS, management companies and trustees, credit institutions, financial institutions, investment undertakings and insurance undertakings and to inspectors instructed by those departments may be made where necessary for reasons of prudential control. | ||||||||
(2) Information received under Regulations 96(1) and 97A(1) shall not be disclosed in the circumstances referred to in this Regulation except with the express agreement of the competent authorities which disclosed the information.”, | ||||||||
and | ||||||||
(e) in Regulation 106, by the insertion after paragraph (2) of the following paragraph: | ||||||||
“(2A) A person who contravenes the conditions of professional secrecy imposed by these Regulations shall be guilty of an offence.”. | ||||||||
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EXPLANATORY NOTE. | ||||||||
(This note is not part of the Instrument and does not purport to be a legal interpretation.) | ||||||||
These Regulations implement the provisions of Directive 95/26/EC in respect of undertakings for collective investment in transferable securities (UCITS). In amending the original UCITS Regulations ( S.I. No. 78 of 1989 ), the Regulations impose new requirements on the auditors of UCITS to report inter alia to the Central Bank breaches of the laws, regulations or administrative provisions relating to UCITS. They also provide for certain exceptions to the general principle of professional secrecy under which the Bank operates and allow, in the interests of more effective regulation, the Bank to share information with other relevant authorities on certain conditions. | ||||||||
4O.J. No. L193, 18.7.83. Directive as last amended by Directive No. 90/605/EEC (O.J. No. L317. 16.11.90.). |
