Transparency Enforcement

Regulator Powers

The Central Bank shall have all the powers necessary for the performance of its functions under transparency regulations. The Central Bank has the power to require auditors, issuers, holders of shares and financial instruments, and persons that control them to provide information and documents to the Bank.

It may require the issuer to disclose information required to the public by the means and within the time limits the Bank considers necessary.  It may require managers of issuers and holders of shares or other financial instruments to notify information required under the regulations and to provide further information and documents to the Bank or its delegate.

It may monitor the issuer’s disclosure of timely information with the objective of ensuring effective and equal access to the public in all states where the securities are traded and take appropriate action if this is not the case.  It may make public the fact that the issuer is failing to comply with its obligations. The Bank is to put in place at least one official mechanism for the central storage of regulated information in accordance with the Transparency Directive.

The Bank has powers to suspend, or request the relevant market to suspend, trading in securities for up to 10 days if it has reasonable grounds for suspecting that provisions of transparency laws have been infringed.  It may prohibit trading on the relevant market if it finds that the provisions have been infringed or has reasonable grounds for suspecting that they would be infringed.

The disclosure to the Bank by an auditor of information, documents, fact or decision on foot of a requirement made by the Bank does not constitute a breach of any duty on part of the auditor which would otherwise apply.  The Bank’s general powers of enforcement are applicable to the enforcement of the regulations.

CB Directions

There are provisions for directions by the Central Bank as considered necessary in the performance of its function under the regulation.  This may include a direction to prevent a person from contravening any provision of the regulation or otherwise necessary to protect the interest of an investor.

There are provisions for administrative sanctions by way of enforcement of the directives similar to those in respect of the prospectus and market abuse regulations.   An assessor may be appointed where there is suspected contravention of regulations by either the Bank or IAASA.  There is provision for submission, investigation by the assessor and hearing of submissions by the issuer concerned.

The assessor may require witnesses to appear, give evidence, and produce documents.  He may apply to the court in support of his powers.  He may refer questions on the law to court.  When an assessor makes an adverse determination, there is provision for an appeal to court within 28 days.

CB Sanctions

Sanctions may be imposed by the Bank, including

• private caution or reprimand,
• public caution or reprimand,
• direction to pay a monetary penalty up to €2.5 million.
• directions qualifying the entity from being concerned or having a holding in any financial services provider for such time as is specified.
• order requiring cessation of prescribed contravention.
• direction to pay costs.

There is provision for enforcement.  Application to court for an order confirming the adverse assessment.

IAASA Powers

The responsible authority is the Chief Executive of the IAASA, the Chief Executive of the Irish Financial Services Regulatory Authority.

IAASA has powers necessary for the performance of its functions above.  It is to examine information drawn up by issuers whose home Member State is the State for the purpose of considering whether the information is in accordance with the relevant reporting framework. The powers in respect of IAASA shall not be exercised for a purpose inconsistent with the transparency regulations.

IAASA has powers to require following persons to produce documents in their possession or control and make copies of such documents or to provide any information or explanations reasonably required, for the purpose of reviewing information furnished pursuant to the Directive.

• Any issuer;
• Director, manager, officer or employee of an issuer;
• Other persons controlling the above;
• Persons discharging managerial responsibilities of the issuer;
• Auditor of the issuer;
• Persons who previously fell within the above class at a time when the document was prepared or came into existence.

The IAASA may certify refusal or failure of any of the above person to provide information.

The disclosure by an auditor of information, documents or decisions on foot of a requirement does not constitute a breach of its duty.

Enforcement Notice

Where it appears to IAASA that there is or may have been a failure of an issuer whose home Member State is the State in relation to its financial reporting publication obligations, it may give notice to the issuer and its directors specifying the matters in respect of which there is a failure of compliance and specifying a period of no more than 30 days within which a written explanation must be given or revised information must be prepared;

In the absence of an explanation or the issuance of revised information, the IAASA may give a direction requiring the issuer to revise the information, seek an order of confirmation from the Court of that direction and recover its costs. The IAASA may require the issuer to pay some or all of its costs concerning the publishing of revised information under Direction.

If the revised information is not furnished, it may give a direction requiring the issuer to revise reports, publish revised information and publish notice of the direction containing such information as the IAASA may specify and pay costs.  There are provisions for application by the issuer to Court to set aside or vary directions made above.   There are provisions for enforcement of the direction.

Authorised Officer

There are provisions for the appointment of authorised officers under the regulation.  They have powers to enter premises at reasonable times where they have grounds for believing that there are relevant records.  They may search and inspect premises.   They may secure premises for later inspection.

They may require the production of records, which are in a non-legible form, to be reproduced in legible form.  They may take copies and inspect them.  They may remove and retain records.

They may require persons to give to the officer information reasonably required in relation to activities covered by the regulations and to produce any relevant records that they have access to. They may require a person on whose behalf data equipment is used to operate it in order to give reasonable assistance in so doing.