Effect of Code Courts have approached the question of whether Codes of conduct establish enforceable legal rights in different ways, specifically in legal proceedings, either through claims or defences. Most Codes and the legislation under which they are made, do not explicitly state their intended legal effect. The primary consequence of a Code lies is that it is a regulatory obligation upon financial service providers. […]
Meaning The Financial Collateral Directive is an EU provision aimed at facilitating the use and enforcement of financial collateral. It establishes common principles concerning the creation and enforcement of collateral. Typically, collateral is enforced through appropriation without recourse to a court or any formal procedure. These regulations apply to financial collateral where the provider and recipient of the collateral are: A supervised institution like a […]
Overview Life Assurance (Provision of Information) Regulations provide mandatory disclosure and prior information at the point of sale, prior to sale of life assurance policy. The Regulations do not apply to life assurance sold to persons resident outside the State, a life policy where none of the clients is an individual, life assurance sold to trustees of occupational pension schemes, contractors for creditor insurance, other […]
2019 Act The Consumer (Insurance Contracts) Act 2019 applies to life and nonlife insurance. There are a limited number of exceptions whereby certain limited categories of insurance are outside the scope of the Act. A consumer for the purpose of legislation is defined in the same manner as in the Financial Services and Pensions Ombudsman Act. This includes smaller businesses with turnover less than €3 […]
Scope of Licensing Consumer credit is regulated. In most cases, providers must be licensed or authorised by the Central Bank of Ireland. Certain aspects of consumer credit legislation are dealt with in our chapters relating to hire purchase, credit sales, leasing of goods and pawnbrokers. This is because of the focus on the transfer of personal property by way of security or transfer in a […]
Introduction An Investment Limited Partnership (ILP) is a regulated common law partnership structure. ILPs are tailored specifically for investment in a collective investment fund, one of five such investment fund vehicles in Ireland. An ILP is formed under the Investment Limited Partnership Act 1994 and established on receiving authorisation by the Central Bank of Ireland (Central Bank). An ILP is constituted according to the limited […]
Constitutional Requirements Part 4 of the 2023 Act made changes to the operation of the ASP to clarify the processes involved, and to ensure that it conforms to the required standards of fairness in the administration of justice, in light of the decision of the Supreme Court in the case of Zalewski v. An Adjudication Officer and Others (2021). The Act makes changes to the […]
Extending F&P Regime The 2023 Act makes a series of amendments to Part 3 of the Central Bank Reform Act 2010, which deals with the Central Bank’s Fitness and Probity (F&P) Regime. These amendments will extend the F&P regime to certain categories of holding company and persons performing controlled functions in relation to them. They will also make changes to the operation of the F&P […]
Individual Accountability Framework Act 2023 The principal purpose of the Act is to confer powers on the Central Bank of Ireland to strengthen and enhance individual accountability in the financial services industry. This is to be achieved by prescribing responsibilities and providing for the allocation of responsibility and accountability for the management and operation of regulated financial service providers (RFSPs) to individuals while maintaining a […]
Qualified Entities The purpose of the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 is to transpose Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC; and to provide for related matters. The Act sets out the criteria […]
FSPO Established The purpose of the Financial Services and Pensions Ombudsman Act 2017 is to: provide for the establishment of the Office of the Financial Services and Pensions Ombudsman provide for the appointment of persons to be the Ombudsman and Deputy Ombudsman extend the time limits for consumer complaints in relation to long-term financial services to provide for the dissolution of the Financial Services Ombudsman […]
Making of Complaints There are various types of complaints that may be made to the Ombudsman. A complainant can complain about the conduct relating to provision of financial services; offer of financial services; failure to provide financial services; financial loss or dispute in relation to certain pensions or any complaint received by the Ombudsman before establishment day that was outside the applicable time limits at […]
Complaints Procedure The Ombudsman may accept a complaint against a financial service provider or a pension provider that has initiated legal proceedings in relation to a matter to which the complaint relates, where the Ombudsman believes, based on reasonable grounds, that the financial service provider or the pension provider, as the case may be, has begun those proceedings in order to prevent the making of […]
Conduct of Investigation The conduct of investigations is undertaken as the Ombudsman considers appropriate in all the circumstances of the case and in a manner that is appropriate and proportionate to the nature of the complaint. The Ombudsman shall advise the parties to the complaint in writing of the conduct of investigation to be undertaken Where the Ombudsman proposes to conduct an investigation into a […]
Appeals A party to a complaint before the Ombudsman may appeal to the High Court against a decision or direction of the Ombudsman. An appeal under this section shall be made— not later than 35 days after the date of notification of the decision of the Ombudsman, or within such further period, as the court considers just and equitable in all the circumstances. The orders […]
Key Duties of Fiduciaries The key duties of fiduciaries include the following, duty not to make personal profits duty to account for profits and benefits received duty to act in best interests of the other duty of good faith Fiduciary obligations also imply a duty of care and to use the requisite skill. It entails a duty to maintain confidentiality. When a fiduciary relationship is […]
Retail Hire Regulation The primary objectives of the Consumer Protection (Regulation of Retail Credit and Credit Servicing Firms) Act 2021 to amend the Central Bank Act 1997 in order to extend the Central Bank of Ireland authorisation requirements to persons carrying on hire-purchase or consumer-hire business or providing credit indirectly and persons carrying on business relating to hire-purchase or consumer-hire agreements or the indirect provision […]
Moneylenders Licensing The Consumer Credit Act applies to moneylenders (now a high-cost credit provider). Moneylenders (now high-cost credit providers) must be licensed by the Central Bank. There are prescribed formats in respect of an application for a moneylending licence. The license authorises the moneylender to operate on such conditions as is specified. Notice of application for the license must be published and objections may be […]
Managing Issue Bonds are issued in much the same way as a public issue of shares. A lead manager will prepare a prospectus, strike the price, and arrange for placement. Generally, an investment bank will advise. Larger issuers may issue their bonds in outside their home jurisdiction. An investment or merchant bank may act as lead manager to the issue. There may be several lead […]
Payment Obligations Bonds have the common feature that the issuer i.e. debtor promises to pay the bearer or holder of the bond a specified sum on a specified date. The terms and conditions of the bond are ultimately a matter of commercial agreement. Formerly most bonds were issued on an unsecured basis. There may be a clause by which the company agreed not to further […]
Prospectus to be published when securities are issued and offered to the public Regulation (EU) 2017/1129 — securities prospectus It aims to help companies, especially SMEs, access different forms of finance in the EU. It does so by simplifying and streamlining the rules and procedures they must apply when drawing up, securing approval and distributing the prospectus* they publish when offering securities* to the public. […]
Market Manipulation The market abuse regulation (MAR) seeks to ensure that European Union (EU) regulation keeps pace with market developments in order to combat market abuse on financial markets as well as across commodity and related derivative markets (i.e. markets trading primary products such as gold, wheat, etc., and financial instruments based thereupon). It reinforces the investigative and sanctioning powers of the regulators appointed by […]
Purchasing property in other EU countries Chapter 4 Capital and Payment (Articles 63, 64, 65 and 66) Treaty on the Functioning of the EU concerning purchasing real estate in other European Union (EU) countries They set out the laws governing the free movement of capital* in the European Union (EU), including the right to purchase property in another EU country and exceptions to the general […]
Better regulated and transparent financial markets Directive 2014/65/EU on markets in financial instruments It aims at making financial markets in the European Union (EU) more robust and transparent. It creates a new legal framework that better regulates trading activities on financial markets and enhances investor protection. The new rules, called ‘MiFID 2’, revise the legislation currently in place and will apply from January 2018. […]
Annual accounts of banks and other financial institutions Council Directive 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions It seeks to harmonise the format and contents of the annual accounts, including consolidated accounts*, of all financial institutions within the European Union (EU). Key Points The directive applies to most credit institutions (e.g. banks) and other financial institutions, with a […]
Insurance distribution — new rules from 2018 Directive 2016/97 — insurance distribution rules It aims to improve the way insurance products are sold so that they will bring real benefits to consumers and retail investors in the EU. Key Points Under the new directive on insurance distribution*, consumers and retail investors buying insurance products or insurance-based investment products will benefit from: greater transparency of insurance […]
Regulation and Prudential Financial and prudential supervision is the responsibility of the home state authorities. They must monitor the entire business and must ensure that the requisite technical provisions are made, and that sound administrative and accounting procedures and controls are provided. There are separate detailed directives for life and non-life insurance. The conditions of authorisation have been harmonised in the EU. The non-life insurance […]
The European Central Bank (ECB) Protocol (No 4) – statute of the European System of Central Banks and of the European Central Bank It lays down the statute of the European System of Central Banks (ESCB) and of the European Central Bank (ECB). Key Points The ECB is the central bank of the euro area and is an independent European Union (EU) institution, representing the […]
European Insurance and Occupational Pensions Authority (EIOPA) The 2008 financial crisis brought to light shortcomings in European Union (EU) financial supervision. Based in Frankfurt, the European Insurance and Occupational Pensions Authority (EIOPA) was created in 2010 to prevent the risks of destabilising the insurance sector. Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory […]
European Banking Authority (EBA) Regulation (EU) No 1093/2010 establishing the European Banking Authority It sets up the EU agency which works to ensure effective and consistent prudential regulation and supervision across the European banking sector. The agency’s overall objectives are to maintain financial stability in the EU and to safeguard the integrity, efficiency and orderly functioning of the banking sector. Consistent application of EU law […]
Fund mergers and master-feeder structures relating to undertakings for collective investment in transferable securities (UCITS) Directive 2010/44/EU implementing Directive 2009/65/EC as regards certain rules concerning fund mergers, master-feeder structures and notification procedure It sets out implementing rules for mergers of undertakings for collective investment in transferable securities (UCITS)* and master-feeder structures in the context of Directive 2009/65/EC on the rules applying to UCITS. It is […]
Venture Capital Funds An EU regulation introduces a European Venture Capital Funds label, also known as EuVECA, and measures to allow managers to set up and market their funds across the EU using a single set of rules. This single rulebook will permit investors to know exactly what they can expect when investing in EuVECA. It will also enable venture capital funds to be better […]
Settlement finality in payment and securities settlement systems Transfers and payments of financial products must be regulated to avoid major risks, especially those linked to the insolvency of participants – in the transaction. This EU law lays down rules to minimise such risks. Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement […]
Credit rating agencies SUMMARY OF: Regulation (EC) No 1060/2009 on credit rating agencies WHAT IS THE AIM OF THE REGULATION? It seeks to regulate the activity of credit rating agencies to protect investors and European financial markets against the risk of malpractice. Its aim is to guarantee the independence and integrity of the credit rating process and to improve the quality of the ratings […]
EU rules on derivatives contracts Regulation (EU) No 648/2012 on OTC derivatives, central counterparties and trade repositories The European market infrastructure regulation (known as ‘EMIR’), lays down rules regarding over-the counter (OTC) derivative contracts, central counterparties (CCPs)* and trade repositories*, in line with the G20 commitments made in Pittsburgh in September 2009. EMIR aims to reduce systemic risk, increase transparency in the OTC market and […]
Supervising banks’ health: ECB accountability and transparency The European Central Bank (ECB) is accountable to the European Parliament when exercising its power of European banking supervision. Interinstitutional Agreement 2013/694/EU between the European Parliament and the European Central Bank on the practical modalities of the exercise of democratic accountability and oversight over the exercise of the tasks conferred on the ECB within the framework of the […]
Rules on the obligations of depositaries for EU investment funds Delegated Regulation (EU) 2016/438 supplementing Directive 2009/65/EC with regard to obligations of depositaries This delegated regulation sets out in detail the specific rights and obligations of depositaries* and management and investment companies under EU rules for undertakings for collective investment in transferable securities (UCITS). In 2018, it was amended by Regulation (EU) 2018/1619 in regard […]