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Item
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Provision amended
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Amendment
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1
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Section 2(1), definition of “articles of association”, paragraphs (a) to (c)
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Substitute:
“(a) in the case of a credit institution that is established by charter, its bye-laws, and
(b) in the case of a credit institution that is a building society, its rules;”.
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2
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Section 2(1)
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After the definition of “financial support”, insert:
“ ‘functions’ includes powers, duties, rights and entitlements, and references to the performance of a function include reference to—
(a) in relation to a power, the exercise of the power,
(b) in relation to a duty, the performance of the duty, and
(c) in relation to a right or entitlement, the exercise of the right or entitlement;”.
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3
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Section 2(1), definition of “relevant institution”, paragraph (a)(iii)
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After “financial support”, insert:
“, other than a financial incentive under section 38, or under
section 46
of the Central Bank and Credit Institutions (Resolution) Act 2011, No. — of 2011),”.
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4
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Section 2(1), definition of “relevant institution”, paragraph (c)
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Delete.
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5
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Section 2
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After subsection (4), insert:
“(5) A reference in this Act to the preservation of the financial position of a relevant institution shall be taken to include the need for the relevant institution to comply with such one or more of the following as apply to it:
(a) an order made in relation to it under this Act;
(b) a requirement imposed on it under section 50;
(c) the European Communities (Capital Adequacy of Credit Institutions) Regulations 2006 (
S.I. No. 661 of 2006
).”.
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6
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Section 3(c)
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For “the
Central Bank Act 1971
, the
Building Societies Act 1989
or the
Credit Union Act 1997
”, substitute “the
Central Bank Act 1971
or the
Building Societies Act 1989
”.
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7
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Section 4(g)
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For “preserve and restore”, substitute “preserve or restore”.
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8
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New section
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After section 5, insert:
“Minister and Bank to have regard to European Union law.
5A.—In performing a function under this Act, the Minister and the Bank shall have regard to the laws of the European Union (including those governing state aid) and any relevant guidance issued by the Commission of the European Union.”.
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9
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Section 7(1)
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For “any action,” substitute “any action, or any series of actions that are together designed to achieve a specified objective,”.
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10
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Section 9(6)
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Delete.
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11
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Section 9(7)
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Substitute:
“(7) A direction order has effect—
(a) if there is an application made under section 11—
(i) if the Court makes an order under section 11 and makes an order as to the date of effect, at that date,
(ii) if the Court makes an order under section 11 and does not make an order as to the date of effect, the date of that order made under section 11, or
(iii) if the Court does not make an order under section 11, 14 days after the publication of the order under section 9A(1)(b),
or
(b) if there is no application made under section 11—
(i) immediately, to the extent that the Court so orders, or
(ii) if the Court does not make an order as to the date of effect, 14 days after the publication of the order under section 9A(1)(b).”.
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12
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New section
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After section 9, insert:
“Publication of direction orders.
9A.—(1) The Minister shall, as soon as practicable after a direction order is made—
(a) serve a copy of the direction order on the relevant institution concerned, and
(b) publish the order in 2 newspapers circulating generally in the State.
(2) In a particular case, the Minister may, if he or she thinks it necessary to do so, publish a direction order by an additional means or in an additional place.
(3) Without delay after the service of the copy of the direction order, the relevant institution shall take all reasonable measures to ensure that its members are made aware of the order, including, without limiting the generality of the foregoing—
(a) where the shares of the relevant institution are traded from time to time on a financial market (whether a regulated market or not), making an announcement that relates to the existence of the direction order and its effect, to a regulatory news service generally used by relevant institutions in the State for the purposes of announcements to such markets, and
(b) providing a copy of the direction order to the regulatory news service referred to in paragraph (a).”.
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13
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Section 11(1)
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Delete “not later than 5 working days after the making of a direction order,” and substitute “not later than 14 days after the publication, in accordance with subsection (1)(b) of section 9A, of a direction order,”.
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14
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Section 11(2)
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Substitute:
“(2) The Court shall give such priority to an application under subsection (1) as is necessary in the circumstances, and may give such directions as it considers appropriate in the circumstances—
(a) with regard to the hearing of the application, or
(b) with regard to a matter that arises during the period beginning with the direction order and ending with the order of the Court under this section.”.
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15
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Section 11(5)
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Substitute:
“(5) On an application under subsection (1)—
(a) if an order is made setting aside the direction order, the order under this section is effective from the date of its making without prejudice to the validity of anything previously done or taken to have been done under the direction order, or
(b) if an order is made refusing to set aside the direction order and the Court does not make an order under subsection (4), the order under this section has the effect that the direction order shall be taken to have been effective as if that application had not been made.”.
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16
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Section 11
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After subsection (6), insert:
“(7) The Court, in considering the order it wishes to make under this section, may, where the applicant is a member of a relevant institution, have regard to—
(a) the date on which the applicant became a member of that institution, or increased or decreased the number of shares that the applicant held in that institution, and
(b) the value of the shares acquired by or disposed of by the member—
(i) as at the date or dates on which the shares were acquired or disposed of, as the case may be, and
(ii) as at the date on which the direction order concerned was made.”.
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17
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Section 13(2)
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For “proposed direction order”, substitute “proposed special management order”.
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18
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Section 14(6)
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Delete.
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19
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New section
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After section 14, insert:
“Publication of special management orders.
14A.—(1) The Minister shall, as soon as practicable after a special management order is made—
(a) serve a copy of the special management order on the relevant institution concerned, and
(b) publish the order in 2 newspapers circulating generally in the State.
(2) In a particular case, the Minister may, if he or she thinks it necessary to do so, publish a special management order by an additional means or in an additional place.
(3) Without delay after the service of the copy of the special management order, the relevant institution shall take all reasonable measures to ensure that its members are made aware of the order, including, without limiting the generality of the foregoing—
(a) where the shares of the relevant institution are traded from time to time on a financial market (whether a regulated market or not), making an announcement that relates to the existence of the special management order and its effect, to a regulatory news service generally used by relevant institutions in the State for the purposes of announcements to such markets, and
(b) providing a copy of the special management order to the regulatory news service referred to in paragraph (a).”.
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20
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Section 16(1)
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Delete “not later than 5 working days after the making of a special management order,” substitute “not later than 14 days after the publication, in accordance with subsection (1)(b) of section 14A, of the making of a special management order,”.
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21
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Section 16(2)
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Substitute:
“(2) The Court shall give such priority to an application under subsection (1) as is necessary in the circumstances, and may give such directions as it considers appropriate in the circumstances—
(a) with regard to the hearing of the application, or
(b) with regard to a matter that arises during the period beginning with the making of the special management order and ending with the making of the order of the Court under this section.”.
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22
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Section 16
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After subsection (6), insert:
“(7) Where, instead of making an order under subsection (3) setting aside a special management order, or an order under subsection (4) varying or amending a special management order, the Court, on application under subsection (1) makes an order refusing to set aside a special management order, the special management order shall be taken to have been effective as if the application under this section had not been made.
(8) The Court, in considering the order it wishes to make under this section may where the applicant is a member of a relevant institution, have regard to—
(a) the date on which the applicant became a member of that institution, or increased or decreased the number of shares that the applicant held in that institution, and
(b) the value of the shares acquired by or disposed of by the member—
(i) as at the date or dates on which the shares were acquired or disposed of, as the case may be, and
(ii) as at the date on which the special management order concerned was made.”.
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23
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Section 28(1)(b)
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Substitute:
“(b) after so consulting, the Minister is of the opinion that the making of a subordinated liabilities order in the terms of the proposed subordinated liabilities order—
(i) is necessary to secure the achievement of a purpose of this Act specified in the proposed subordinated liabilities order, or
(ii) is necessary for the preservation or restoration of the financial position of the relevant institution,
even though the making of that order would have the consequence of affecting (including reducing) the rights enjoyed by subordinated creditors before the order, but nothing in this subsection shall be taken as requiring the Minister to consider the possible adverse consequences of the order on the interests of a particular creditor or class of creditors of the relevant institution or to consider any submission made by a creditor on behalf of that creditor, a class of creditors or creditors generally.”.
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24
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Section 28
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After subsection (1), insert:
“(1A) If the Minister makes a proposed subordinated liabilities order in relation to a relevant institution and the intention of it or part of it is the preservation or restoration of the financial position of a credit institution, the Minister shall declare in the proposed subordinated liabilities order that the proposed subordinated liabilities order or part is made with that intention, in accordance with the CIWUD Directive.”.
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25
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Section 28(2)(h)
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Substitute:
“(h) the market value of the subordinated liabilities concerned;
(i) the effectiveness or likely effectiveness of liability management exercises of that institution in respect of its subordinated liabilities;
(j) the extent to which subordinated creditors would, if the subordinated liabilities order were made, be more likely to voluntarily agree to any of the matters referred to in subsection (4).”.
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26
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Section 29
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After subsection (2), insert:
“(2A) If in a proposed subordinated liabilities order the Minister has declared the intention of preserving or restoring the financial position of a credit institution, and the Court is satisfied that the Minister made the proposed subordinated liabilities order or part of it with that intention, the Court shall declare in the relevant subordinated liabilities order that the subordinated liabilities order or the relevant part of it is a reorganisation measure for the purposes of the CIWUD Directive.”.
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27
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Section 29(5)
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Delete.
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28
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Section 29(6)
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Substitute:
“(6) A subordinated liabilities order is effective from the date on which the requirements of section 29A(2)(a) and (b) are met.
(7) If one of the consequences of a subordinated liabilities order is that it terminates or reduces the liability of a relevant institution to its subordinated creditors, that termination or reduction shall be taken, for all purposes, as having occurred immediately on the subordinated liabilities order’s becoming effective under subsection (6).”.
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29
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New section
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After section 29, insert:
“Publication of subordinated liabilities orders.
29A.—(1) The Minister shall, as soon as practicable after a subordinated liabilities order is made—
(a) serve a copy of the subordinated liabilities order on the relevant institution concerned, and
(b) publish the order in 2 newspapers circulating generally in the State.
(2) Without delay after the service of the copy of the subordinated liabilities order, the relevant institution concerned shall take all reasonable measures to ensure that the subordinated creditors concerned are made aware of the order, including, without limiting the generality of the foregoing—
(a) making an announcement that relates to the existence of the subordinated liabilities order and its effect to a regulatory news service generally used by relevant institutions in the State whose securities are traded from time to time on a financial market (whether a regulated market or not), to make announcements to such markets,
(b) providing a copy of the subordinated liabilities order to the regulatory news service referred to in paragraph (a), and
(c) providing a copy of the announcement, and of the subordinated liabilities order, to each clearing house through which the subordinated creditors concerned would, in the ordinary course, acquire or settle subordinated liabilities held by them.”.
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30
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Section 31(1)
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Delete “not later than 5 working days after the making of a subordinated liabilities order, for the setting aside of the subordinated liabilities order” and substitute “not later than 14 days after the requirements of section 29A(2)(a) and (b) have been met, for the setting aside of the subordinated liabilities order or, in the case of a subordinated creditor, of the part or parts of that order that affect the subordinated creditor concerned.”.
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31
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Section 31(2)
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Substitute:
“(2) The Court shall give such priority to an application under subsection (1) as is necessary in the circumstances, and may give such directions as it considers appropriate in the circumstances—
(a) with regard to the hearing of the application, or
(b) with regard to a matter that arises during the period beginning with the subordinated liabilities order and ending with the order of the Court under this section.”.
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32
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Section 31(4)
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After “considers appropriate”, insert “(including varying the amounts owing to subordinated creditors or one or more classes of subordinated creditors)”.
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33
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Section 31(5)
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Substitute:
“(5) On application under subsection (1)—
(a) if an order is made setting aside the subordinated liabilities order, the effect of the order under this section shall be to set aside the subordinated liabilities order concerned to the extent and on the terms that the Court directs, and
(b) if an order is made refusing to set aside the subordinated liabilities order and the Court does not make an order under subsection (4), then the subordinated liabilities order shall continue to be effective.”.
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34
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Section 31(6)
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Substitute:
“(6) If any order is made under subsection (4) to vary or amend a subordinated liabilities order, the subordinated liabilities order as varied or amended shall be taken as being effective as if the terms and conditions as varied were the terms and conditions of the original subordinated liabilities order but otherwise as if the application under this section had not been made.”.
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35
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Section 31
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After subsection (6), insert:
“(7) The Court, in considering the order it wishes to make under this section may, where the applicant is a subordinated creditor of a relevant institution, have regard to—
(a) the date or dates on which the applicant acquired or disposed of the subordinated liabilities of the relevant institution, and
(b) the market value of those subordinated liabilities—
(i) as at the date or dates referred to in paragraph (a), and
(ii) as at the date on which the subordinated liabilities order concerned was made.
(8) Where an application under subsection (1) is made by a subordinated creditor for the setting aside of the part or parts of the subordinated liabilities order that affect him or her, or where the Court makes an order setting aside, or amending or varying, a part or parts only of the subordinated liabilities order, a reference in this section to a subordinated liabilities order shall be read as a reference to that part or those parts only of that subordinated liabilities order.”.
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36
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New section
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After section 33, insert:
“Relevant institution not to dispose of assets, liabilities.
33A.—(1) Unless the Minister provides prior written consent, a relevant institution shall not dispose of any asset or liability which is to be transferred under a transfer order, except in the ordinary course of its business, during the period beginning with the delivery of the written notice under subsection (4) of section 33, or the date on which the relevant institution otherwise becomes aware of the proposed transfer order as part of the process of seeking its consent under that subsection, whichever is the earlier, and ending on the date of effect of the transfer order under section 34(7).
(2) The officers and employees of a relevant institution shall comply with subsection (1).
(3) If the Minister is of the opinion that a relevant institution is in breach of subsection (1) or has taken steps that would likely lead to such a breach, the Minister may apply ex parte to the Court for an order compelling compliance with that subsection.”.
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37
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Section 33(2)
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Substitute:
“(2) The Minister may make a proposed transfer order only if the Minister, having consulted with the Governor, is of the opinion that, having regard to any adverse consequences that may arise as a result of the transfer order, in relation to the interests generally of the creditors of the transferor or, where the transferor is a subsidiary or holding company, in relation to the interests generally of the creditors of the transferor or the relevant institution concerned, making a transfer order in the terms of the proposed transfer order is necessary to secure the achievement of a purpose of this Act specified in the proposed transfer order.
(2A) Nothing in subsection (2) requires the Minister to consider the possible adverse consequences of the transfer order concerned on the interests of a particular creditor or class of creditors of the transferor or relevant institution, as the case may be, or to consider any submission made by a creditor on behalf of that creditor, a class of creditors or creditors generally.”.
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38
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Section 33
|
After subsection (4), insert:
“(4A) If the Minister proposes that the transfer order or any term of it have immediate effect, the Minister shall state, in the written notice given under subsection (4)(a), that fact and the reasons why the order or term should have that effect.”.
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39
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Section 34(6)
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Delete.
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40
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Section 34(7)
|
Substitute:
“(7) A transfer order has effect—
(a) if there is an application made under section 36—
(i) if the Court makes an order under section 36 and makes an order as to the date of effect, at that date,
(ii) if the Court makes an order under section 36 and does not make an order as to the date of effect, the date of that order made under section 36, or
(iii) if the Court does not make an order under section 36, 14 days after the publication of the order under section 34A(1)(b),
or
(b) if there is no application made under section 36—
(i) immediately, to the extent that the Court so orders, or
(ii) if the Court does not make an order as to the date of effect, 14 days after the publication of the order under section 34A(1)(b).”.
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41
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New section
|
After section 34, insert:
“Publication of transfer orders.
34A.—(1) The Minister shall, as soon as practicable after a transfer order is made—
(a) serve a copy of the transfer order on the relevant institution concerned, and
(b) publish the order in 2 newspapers circulating generally in the State.
(2) In a particular case, the Minister may, if he or she thinks it necessary to do so, publish a transfer order by an additional means or in an additional place.
(3) Without delay after the service of the copy of the transfer order, the relevant institution shall take all reasonable measures to ensure that its members are made aware of the order, including, without limiting the generality of the foregoing—
(a) where the shares of the relevant institution are traded from time to time on a financial market (whether a regulated market or not), making an announcement that relates to the existence of the transfer order and its effect, to a regulatory news service generally used by relevant institutions in the State for the purposes of announcements to such markets, and
(b) providing a copy of the transfer order to the regulatory news service referred to in paragraph (a).”.
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42
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Section 36(1)
|
Delete “not later than 5 working days after the making of a transfer order,”, and substitute “not later than 14 days after the publication, in accordance with subsection (1)(b) of section 34A, of a transfer order,”.
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43
|
Section 36(2)
|
Substitute:
“(2) The Court shall give such priority to an application under subsection (1) as is necessary in the circumstances, and may give such directions as it considers appropriate in the circumstances—
(a) with regard to the hearing of the application, or
(b) with regard to a matter that arises during the period beginning with the transfer order and ending with the order of the Court under this section.”.
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44
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Section 36(5) and (6)
|
Substitute:
“(5) If the Court sets aside a transfer order, no further assets or liabilities shall be transferred as a consequence of the transfer order.
(6) The setting aside of a transfer order does not affect the rights of a transferee or the transferee’s title to any asset or liability so transferred before that setting-aside.
(7) If a transfer order is set aside and assets or liabilities have been transferred pursuant to it, the transferor is not entitled to any payment other than the consideration paid pursuant to the transfer order.
(8) If a variation or amendment of a transfer order made under this section would, but for this subsection, have the effect of setting aside a disposition of an asset or liability, subsections (5) to (7) apply with any necessary modifications.
(9) The Court, in considering the order it wishes to make under this section, may, where the applicant is a member of a relevant institution, have regard to—
(a) the date on which the applicant became a member of that institution, or increased or decreased the number of shares that the applicant held in that institution, and
(b) the value of the shares acquired by or disposed of by the member—
(i) as at the date or dates on which the shares were acquired or disposed of, as the case may be, and
(ii) as at the date on which the transfer order concerned was made.”.
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45
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Section 37(5)
|
Delete.
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46
|
Section 37(7)
|
For “financial collateral arrangement (within the meaning of the European Communities (Financial Collateral Arrangements) Regulations 2004 (
S.I. No. 1 of 2004
))”, substitute “financial collateral arrangement (within the meaning of Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 5
on financial collateral arrangements, as amended by Directive 2009/44/EC of the European Parliament and of the Council of 6 May 2009 6
, and of the European Communities (Financial Collateral Arrangements) Regulations 2010 (
S.I. No. 626 of 2010
))”.
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47
|
Section 39(4)(h)
|
Delete “entitled and subject to if” and substitute “entitled and subject if”.
|
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48
|
Section 39(5)
|
For “a credit union or a building society”, substitute “a building society” in each place where it occurs.
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49
|
Section 39
|
After subsection (5), insert:
“(5A) If—
(a) the transferor is a building society,
(b) a share account is included in the transfer of assets and liabilities, and
(c) the share account becomes a deposit account in the transferee pursuant to subsection (5),
the holder of that account continues to have the membership rights in the transferor that he or she had before the transfer, including (without limitation) voting rights and rights to participate in any surplus on a winding-up.
(5B) Subsection (5A) has effect notwithstanding anything in—
(a) the
Building Societies Act 1989
, or
(b) the memorandum of association or rules of the transferor.”.
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50
|
Section 39(6)
|
Substitute:
“(6) The transfer of assets and liabilities under a transfer order takes effect notwithstanding—
(a) any duty or obligation to any person that would otherwise prevent or restrict the transfer,
(b) any provision of any enactment, rule of law, code of practice or agreement providing for or requiring—
(i) notice to any person,
(ii) the consent, approval or concurrence of any person, or
(iii) any formality such as registration,
(c) any other rule of law or equity,
(d) any code of practice made under an enactment,
(e) the listing rules of a regulated market or the rules of any other market on which the shares of the transferor are traded,
(f) the memorandum of association or articles of association of the transferor, or
(g) any agreement which the transferor is a party to, is bound by, or has an interest in,
except to any extent to which the transfer order expressly provides otherwise.”.
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51
|
Section 47(1)
|
For “the Companies Acts, the
Building Societies Act 1989
or the
Credit Union Act 1997
”, substitute “the Companies Acts or the
Building Societies Act 1989
”.
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52
|
Section 50(2)
|
In paragraph (g), for “(
S.I. No. 490 of 2009
).” substitute “(
S.I. No. 490 of 2009
);”.
After paragraph (g), insert:
“(h) to dispose of some of the assets or part of the undertaking of the relevant institution, subject to such terms and conditions as are specified by the Minister, where, in the opinion of the Minister, the disposal is required in order for the relevant institution concerned to achieve—
(i) a ratio the subject of a requisition under
section 23
of the
Central Bank Act 1971
,
(ii) a requirement as to the composition of the assets or liabilities of the relevant institution as specified by the Bank under section 23A of that Act.”.
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53
|
Section 50
|
After subsection (2), insert:
“(2A) If the Minister imposes a requirement on a relevant institution and the intention of it or part of it is the preservation or restoration of the financial position of a credit institution, the Minister shall declare in the requirement that the requirement or part is made with that intention, in accordance with the CIWUD Directive.”.
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54
|
Section 52
|
Insert “or requirement imposed under section 50” after “Act”.
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55
|
New section
|
After section 52, insert the following:
“Costs incurred in relation to making orders, etc.
52A.—Where the Courts Service, or another body funded, wholly or partly, out of moneys provided by the Oireachtas, or from the Central Fund or the growing produce of the Central Fund, has incurred costs in relation to the translation or publication of an order under this Act (including where the translation or publication is required by the European Communities (Reorganisation and Winding-Up of Credit Institutions) Regulations 2011 (
S.I. No. 48 of 2011
)), the costs are a debt due and owing by the credit institution concerned, and may be recovered as a simple contract debt in any court of competent jurisdiction.”.
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|
56
|
Section 53(a)
|
For “the Companies Acts, the
Building Societies Act 1989
or the
Credit Union Act 1997
”, substitute “the Companies Acts or the
Building Societies Act 1989
”.
|
|
57
|
Section 59(1)
|
Insert “(other than the Minister)” after “person shall not”.
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58
|
Section 61(3)
|
Insert “(whether or not the order or requirement is subsequently set aside, or varied or amended in a relevant manner)” after “subsidiary of its holding company”.
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59
|
Section 65(1)
|
Substitute:
“65.—(1) Nothing in this Act—
(a) affects the operation of—
(i) the
Netting of Financial Contracts Act 1995
,
(ii) the European Communities (Settlement Finality) Regulations 2010 (
S.I. No. 624 of 2010
),
(iii) the European Communities (Financial Collateral Arrangements) Regulations 2010 (
S.I. No. 626 of 2010
), or
(iv) Regulation 30 of the Regulations of 2011,
in relation to an agreement to which a relevant institution or any of its subsidiaries is a party, or
(b) affects the terms and operation of any collateral arrangements governed by any provision of the law of a Member State required for the implementation of the provisions of—
(i) Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 (as amended by Directive 2009/44/EC of the European Parliament and of the Council of 6 May 2009), or
(ii) Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 (as amended by Directive 2009/44/EC of the European Parliament and of the Council of 6 May 2009).”.
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