Stock Exchange Act, 1995

Interpretation.

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

“approval” means an approval under section 9 of this Act ;

“approved stock exchange” means a stock exchange which has been approved of under section 9 of this Act;

“associated undertaking” means—

(a) an undertaking in which a qualifying capital interest equal to 20 per cent, or more of all such interests is held and which is not a subsidiary undertaking, or

(b) an undertaking over whose operating and financial policy a significant influence is exercised and which is not a subsidiary undertaking,

and for the purposes of paragraph (a) of this definition, interests held by persons acting in their own name but on behalf of another person shall be deemed to be held by that other person;

“authorised member firm” means a member firm which has been authorised by the Bank under section 18 of this Act;

“authorisation” means an authorisation granted under section 18 of this Act, unless otherwise specified;

“authorised officer” means a person authorised under section 55 of this Act;

“the Bank” means the Central Bank of Ireland;

“client money requirements” has the meaning assigned to it by section 52 of this Act;

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

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

“the Companies Acts” means the Companies Acts, 1963 to 1990, and every enactment which is to be construed with them as one Act;

“the Court” means the High Court;

“credit institution” means a credit institution within the meaning of Article 1 of Council Directive 77/780/EEC of 12 December, 1977(2) as amended by Council Directive 89/646/EEC of 15 December, 1989(3), but does not include the institutions referred to in Article 2 (2) of that Directive;

“director” includes any person occupying the position of director by whatever name called and any person who effectively directs or has a material influence over the business of an approved stock exchange or authorised member firm;

“former approved stock exchange” means an approved stock exchange whose approval has been revoked;

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

“functions” includes powers and duties;

“home Member State” means—

(a) where the member firm or proposed member firm is a natural person, the Member State in which his head office is situated, or

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

(c) in the case of a market, the Member State in which the registered office of the body which provides trading facilities is situated or, if under its national law it has no registered office, the Member State in which that body's head office is situated;

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

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

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

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

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

“investment instruments” includes—

(a) transferable securities, units or shares in undertakings for collective investments in transferable securities within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 ( S.I. No. 78 of 1989 ), and any subsequent amendments thereto, financial futures contracts including index futures contracts, commodity futures contracts, future or forward interest rate agreements, interest rate swaps, exchange rate swaps, warrants or other instruments entitling the holder to subscribe for investment instruments as set out in this definition, borrowing and lending of transferable securities, repurchase agreements, units in a unit trust, shares in an investment variable capital or fixed capital company, capital contributions to an investment limited partnership, debentures, including debenture stock, loan stock, bonds, certificates of deposit, other instruments creating or acknowledging indebtedness, Government and public securities, including loan stock, bonds and other instruments creating indebtedness issued by or on behalf of a government, local authority or public authority, bonds and other instruments creating or acknowledging indebtedness issued by or on behalf of any body corporate or mutual body, and certificates representing securities,

(b) certificates or other instruments which confer—

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

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

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

(c) options in any instrument referred to in paragraph (a) of this definition,

(d) any investment instrument in dematerialised form, and

(e) any instrument similar to investment instruments defined in subparagraphs (a), (b), (c) or (d) of this definition,

but this definition shall not be construed as applying to—

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

(II) a cheque, a banker's draft or a letter of credit; or

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

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

“investment services” means all or any of the following services:

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

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

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

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

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

“Irish Stock Exchange” means the body commonly known on or before the coming into operation of this section as the “Irish Unit of the International Stock Exchange of the United Kingdom and the Republic of Ireland Limited” and the body known as the Irish Stock Exchange Limited after the coming into operation of this Act;

“member firm” means any person who is a member of an approved stock exchange and whose regular occupation or business is the provision of investment services within the meaning of paragraphs (a) or (b) or (c), or any or all of these, of the definition of “investment services” on or off the floor of a stock exchange on a professional basis;

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

“the Minister” means the Minister for Finance;

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

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

“proposed member firm” means a person who is seeking authorisation from the Bank to be an authorised member firm;

“proposed stock exchange” means a person who is seeking approval from the Bank to be an approved stock exchange;

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

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

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

“related undertakings” means—

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

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

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

“rules” means rules other than rules which solely give effect to—

(a) the European Community Stock Exchange Regulations, 1984 ( S.I. No. 282 of 1984 ), as amended or extended from time to time,

(b) the European Communities (Stock Exchange) (Amendment) Regulations, 1991 ( S.I. No. 18 of 1991 ), as amended or extended from time to time,

(c) the European Communities (Transferable Securities and Stock Exchange) Regulations, 1992 ( S.I. No. 202 of 1992 ), as amended or extended from time to time,

(d) Part V of the Companies Act, 1990 ,

(e) rules relating to matters for which an approved stock exchange exercises authority, delegated other than under this Act,

(f) the Companies (Stock Exchange) Regulations, 1990 ( S.I. No. 337 of 1990 ),

(g) any rules made by an approved stock exchange relating solely to the regulation of companies for which that stock exchange provides trading facilities in their stock,

(h) listing-type functions contained in the Companies Act, 1990 ;

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

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

(b) imposed by virtue of the ACC Bank Act, 1992 (Section 4) Regulations, 1992 ( S.I. No. 373 of 1992 ), the ICC Bank Act, 1992 (Section 3) Regulations, 1993 ( S.I. No. 24 of 1993 ), the European Communities (Licensing and Supervision of Banks) Regulations, 1979 ( S.I. No. 414 of 1979 ), the European Communities (Licensing and Supervision of Credit Institutions) Regulations, 1992 ( S.I. No. 395 of 1992 ) or the European Communities (Consolidated Supervision of Credit Institutions) Regulations, 1992 ( S.I. No. 396 of 1992 ),

(c) under the Unit Trusts Act, 1990 ,

(d) under the Building Societies Act, 1989 ,

(e) under the Companies Act, 1990 ,

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

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

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

(i) under any other enactment or instrument made under an enactment, and

(j) under this Act;

“stock exchange” means an organised financial market whose members provide an investment service (within the meaning of paragraphs (a), (b) and (c) of the definition in this section of “investment services”) in respect of investment instruments, but excluding any exchange involved wholly or mainly in financial futures or options and coming within the provisions of Chapter VIII of Part II of the Central Bank Act, 1989 ;

“subsidiary” means a subsidiary within the meaning of section 155 of the Companies Act, 1963 ;

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

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

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

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

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

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

(c) references to “board of directors” shall be construed as references to the partners, committee, council or other organ of management of the body of persons concerned, and

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

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

(1) O.J. No. L 141 11/6/93.

(2)O.J. No. L 322 17/12/77.

(3) O.J. No. L 386 30/12/89.

(1) O.J. No. L 141 11/6/93