The Minister may prescribe a regulator for a class of designated business. Where there is more than one regulator, they may agree between them that one of them will act as the regulator for that designated business. Such an agreement shall be effective when written notice has been given to the person.
The regulators are as follows
- in the case of a designated business that is a credit institution or a financial institution, the Central Bank of Ireland;
- in the case of a designated business who is an auditor, external accountant, tax adviser or trust or company service provider—
- if the person is a member of a designated accountancy body, the designated accountancy body, or
- if the person is not a member of a designated accountancy body and is a body corporate, or a body of unincorporated persons, carrying out its functions under this through officers and members] of it who are members of a designated accountancy body, the designated accountancy body;
- in the case of a designated business who is a solicitor, the Law Society of Ireland;
- in the case of a designated business who is a barrister, the Legal Services Regulatory Authority;
- in the case of a designated business that is a property services provider, the Property Services Regulatory Authority;
- in the case of any other designated business the Minister shall prescribe the regulator.
Functions of Regulator
The functions and duties of a regulator are to secure compliance by designated businesses with the requirements of the legislation.
A regulator shall effectively monitor the designated businesses for whom it is a regulator and take measures that are reasonably necessary for the purpose of securing compliance by those designated businesses with the requirements.
The measures that are reasonably necessary include reporting to the Garda Síochána and Revenue Commissioners any knowledge or suspicion that the regulator has that a designated business has been or is engaged in money laundering or terrorist financing.
In determining, in any particular case, whether a designated business has complied with any of the requirements, a regulator shall consider whether the person is able to demonstrate to the regulator that the requirements have been met.
A regulator that, in the course of monitoring a designated business under this section, acquires any knowledge or forms any suspicion that another person has been or is engaged in money laundering or terrorist financing shall report that knowledge or suspicion to the Garda Síochána and Revenue Commissioners.
Competent authorities shall take the necessary measures to prevent persons convicted of a relevant offence from performing a management function in or being the beneficial owners of the designated businesses.
A regulator must include an account of its activities in relation to the performance of its functions in each annual report published.
Any person performing a management function in or being the beneficial owner of the designated businesses and who is convicted of a relevant offence must inform the relevant regulator within 30 days of the day on which that person was convicted of the relevant offence.
Any designated business for which or in respect of which a person who is convicted of a relevant offence, performs a management function or is a beneficial owner shall inform its regulator of the conviction within 30 days of the date on which the designated business became aware of the conviction.
In the case of a designated business which operates establishments in the State and which has its head offices in another EU State, or which operates establishments in another EU State and which has its head offices in the State, the following provisions apply.
A regulator for designated businesses shall take the necessary steps—
- to co-operate with EU State competent authorities in relation to the development and implementation of policies to counter money laundering and terrorist financing,
- to co-ordinate activities to counter money laundering and terrorist financing with EU State competent authorities, and
- to co-operate with EU State competent authorities to ensure the effective supervision of designated businesses to which this section applies.
Co-operation with EU State competent authorities under this section by a regulator may include the sharing of information which the regulator is not prevented from disclosing by the law of the State and the provision of assistance shall not be refused on the basis that:
- the request for the sharing of information or the provision of assistance is also considered to involve tax matters;
- the law of the State requires the regulator to maintain secrecy or confidentiality except in those cases where the relevant information that is sought is protected by legal privilege;
- there is an inquiry, investigation or proceeding underway in the State, unless the sharing of such information or the provision of assistance would impede the inquiry, investigation or proceeding; or
- the nature or status of the requesting regulator is different from that of the regulator of whom the request is made.
Each regulator shall—
- adopt a risk-based approach to the exercise of its supervisory functions,
- ensure that its employees and officers have access both at its offices and elsewhere to relevant information on the domestic and international risks of money laundering and terrorist financing, which affect its own sector,
- base the frequency and intensity of on-site and off-site supervision on the risk profile of designated businesses, and on the risks of money laundering and terrorist financing in the State,
- review, both periodically and when there are major events or developments in their management and operations, their assessment of the money laundering and terrorist financing risk profile of designated businesses, including the risks of non-compliance with the provisions of the legislation, and
- take into account the degree of discretion allowed to the designated business, and appropriately review the risk assessments underlying this discretion and the adequacy and implementation of its internal policies, controls and procedures.]
A regulator, other than a State regulator, shall make arrangements to ensure that—
- its supervisory functions are exercised independently of any of its other functions which do not relate to disciplinary matters,
- sensitive information relating to its supervisory functions is appropriately handled within the regulator,
- it employs only persons with appropriate qualifications, integrity and professional skills to carry out the supervisory functions and maintain high professional standards, including standards of confidentiality and data protection and standards addressing conflicts of interest, and
- contravention of a requirement imposed by or under the legislation by a designated business it is responsible for supervising renders that person liable to effective, proportionate and dissuasive disciplinary measures under its rules.
A regulator, other than a State regulator, shall—
- provide adequate resources to carry out the supervisory functions, and
- appoint a person to monitor and manage the regulator’s compliance with its duties under the legislation.
The person appointed shall be responsible for liaison with another regulator, and any EU State regulator and for ensuring that the regulator responds fully and as soon as possible to any request from an authority for information about any person it supervises.
Each regulator shall establish effective and reliable mechanisms to encourage the reporting of potential and actual breaches of the legislation. Each regulator shall provide one or more secure communication channels for persons reporting the matters concerned.
Each regulator shall ensure that the channels of communication can also be used by persons to report any threats or retaliatory or hostile actions they are subjected to for reporting suspected breaches of the legislation.
The above obligations do not affect any function that a regulator has under any other enactment or rule of law.
Requests may be made to bodies to provide relevant information relating to designated businesses. A State regulator may request relevant information. A regulator that receives a request must disclose the relevant information. The Minister to prescribe information that a State regulator may request.
A State regulator may direct a designated business to provide information or documents as specified by written notice. It is an offence not to reply. The State regulator should specify the manner and time in which the information is to be furnished and that a person should only furnish documents in their possession or documents which can be obtained lawfully.
A person who knows the whereabouts of documents sought is to give a statement identifying the whereabouts thereof. Failure to comply is an offence. That document shall be furnished in written form unless otherwise directed. A State regulator may take copies of such documents.
The furnishing of documents under the provision shall not prejudice any lien held over an item forming part of any documents furnished. A State regulator may direct a designated business to furnish an explanation in relation to any documents furnished to the authority. The authority is to specify the time and manner in which the explanation is to be furnished. There are penalties for failure to comply with a direction.
Directions by Regulator
A State regulator may only give a direction if the information or documents are reasonably required by the authority to assist it in the performance of its functions. A person is not required to comply with a direction where to do so might tend to incriminate them.
A State regulator may direct a designated business to discontinue or refrain from engaging in conduct which may constitute a breach. A direction is to specify the time in which a direction is to be complied with. In the event that such a direction is not complied with, and the person is found guilty of an offence due to the conduct specified in the direction, it provides that the court shall take the failure to comply into account as an aggravating factor in determining any sentence to be imposed.
A State regulator may appoint employees or other persons to be authorised officers for the purpose of the legislation. The authority may revoke such an appointment in writing. Every authorised officer appointed by a State regulator s be furnished with a warrant of appointment and the officer shall produce the warrant for inspection if requested by a person affected by the performance of the officer’s functions.
An authorised officer may only exercise powers for the purpose of assisting the State regulator that appointed the officer. Authorised officers have the power to enter premises and sets out the circumstances in which this power may be exercised. An authorised officer may not enter premises used only for residential purposes unless with the permission of the occupier or under the authority of a warrant.
A person to whom a request is made to comply with the request where possible and give such assistance and information to the authorised officer as is reasonable. An authorised officer may apply to a judge of the District Court for a warrant. A District Court judge may issue a warrant under the provision in order to permit an authorised officer to enter the relevant premises and to exercise the powers conferred on the officer or by the warrant.
Before the judge may issue a warrant, he or she must be satisfied that there are reasonable grounds for believing that there are documents contained on the premises that are required by the State regulator and, where the application is in respect of a residential premises, that the occupier has refused entry to the officer. Entry to a premises authorised by a warrant may be effected with reasonable force.
An authorised officer may be accompanied and assisted by other authorised officers, members of the Garda Siochana or other appropriate persons. It is an offence to obstruct or interfere with an authorised officer in their powers or to fail to comply with a requirement.
Nothing in the legislation requires a person to answer questions which might tend to incriminate them. Nothing requires the production of documents or information subject to legal privilege.
The production of documents or information in accordance with a statutory request shall not, on disclosure by the person receiving it, be treated as a breach of any restriction under any enactment or rule of law. The production of any item forming part of the documents shall not prejudice any lien in place over that item.