Trust & Company Providers

Authorisation of Providers

The money laundering legislation provides for the authorisation and registration procedure for persons carrying on the business of a Trust and Company Service Provider, who are not already regulated as members of a designated accountancy body, and who are not a barrister or solicitor, or a credit institution or financial institution.

The 3rd Money Laundering Directive provides that trust and company service providers shall be licensed or registered and that a ‘‘fit and proper’’ test be applied to persons who direct or are the beneficial owners of such businesses.These provisions are based on provisions which apply to bureau de change and money transmitters under Part V of the Central Bank Act 1997

A ‘‘trust or company service provider’’ excludes a member of a designated accountancy body, a barrister or solicitor, or a credit institution or financial institution, as these categories are already subject to regulation.

Qualification

There are  certain matters which would disqualify a person from being considered ‘‘a fit and proper person’’ for the purposes of an authorisation. These include having certain criminal convictions, refusing due payment of debt, being an undischarged bankrupt or otherwise not being a fit and proper person. The provisions apply to each member of a partnership which applies for or holds an authorisation unless otherwise specified.

It is an offence to carry on the business of a Trust or Company Service Provider without an authorisation from the Minister. The provision also provides for penalties on summary conviction and on conviction on indictment.

Authorisation

The procedure to be followed by persons applying for an authorisation is set out.  The application must specify the name of any beneficial owner of the business. The Minister has the power to seek additional information.

Applicants must also provide consent to allow access to personal data from any source where this is necessary to assess whether the applicant fulfils the ‘‘fit and proper’’ test. The Minister may provide for the payment of fees for an application for an authorisation or the renewal of an authorisation.

The Minister may refuse an application only if certain conditions are met. These include failure to comply with the application procedure, provision of false or misleading information, failure to meet the ‘‘fit and proper’’ test by an applicant or beneficial owner or failure to satisfy the Minister that the applicant can fulfil the requirements of the legislation or of an authorisation.

Refusal & Conditions

It also provides that where the Minister proposes to refuse an application, he must state grounds to the applicant and allow the applicant to make representations stating why the application should be granted. The Minister may refuse an application only after considering any such representations. Where the Minister refuses an application, he must give notice to the applicant stating the grounds for the refusal and informing the applicant of the right to appeal to an Appeal Tribunal.

The Minister may impose conditions on an authorisation if he considers this necessary for the orderly regulation of the business or for the prevention of money laundering or terrorist financing. Where the Minister imposes conditions, he must state the reasons for the conditions and inform the applicant of the right of appeal to an Appeals Tribunal. An authorisation is   to have a term of three years.

The procedure for renewal of an authorisation includes a requirement that an application for renewal shall be made not less than 10 weeks before the expiry of the authorisation. The   Minister has power to amend an existing authorisation. It provides that where the Minister proposes to amend an authorisation, he must state reasons to the applicant and allow the applicant to make representations stating why the authorisation should not be amended.

The Minister may amend an authorisation only after considering any such representations. Where the Minister amends an authorisation, he must give notice to the applicant stating the grounds for the amendment and informing the applicant of the right to appeal to an Appeal Tribunal. Section

Compliance

It is an offence for the holder of an authorisation not to comply with any conditions or prescribed requirements attaching to the authorisation. The holder of an authorisation shall take reasonable steps to ensure that any principal officer or beneficial owner of the business is a fit and proper person.

The  Minister shall revoke an authorisation on the application of the holder only if the holder has fully complied with the requirements of the authorisation and certain requirements of the legislation. The Minister may revoke an authorisation only if he is reasonably satisfied of certain matters.

These include the provision of false or misleading information, failure to meet the ‘‘fit and proper’’ test by the holder or beneficial owner or failure to meet the requirements of the legislation or of an authorisation. Where the Minister proposes to revoke an authorisation, he shall state the grounds to the holder and allow the holder to make representations stating why the authorisation should not be revoked. The Minister may revoke the authorisation only after considering any such representations.

Revocation & Appeal

Where the Minister revokes an authorisation, he must give notice to the applicant stating the grounds for the revocation and informing the holder of the right to appeal to an Appeal Tribunal. The Minister may prohibit the holder of an authorisation from carrying on business as a trust or company service provider other than in accordance with specified conditions where the Minister reasonably believes that there may be grounds for revoking the authorisation.

The holder has the right to appeal to an Appeal Tribunal against such a direction. The Minister shall publish in Iris Oifiguil particulars of any revocation of an authorisation or of any direction.

There are procedures for appeals by a person who is aggrieved by a decision of the Minister. The person making an appeal, or the Minister may appeal to the High Court on any question of law arising from a determination by the Appeal Tribunal. An Appeal Tribunal must be established to hear appeals. A person who is appointed to such an Appeal Tribunal must be a solicitor or a barrister of at least 7 years standing.

The  Minister may request information from the Commissioner of the Garda Siochana which the Minister requires in order to establish whether any applicant for an authorisation to operate a business as a trust or company service provider or a beneficial owner is a fit and proper person. The Minister may exercise any of the powers of a regulator under Chapter 8 in exercising his functions in relation to trust or company service providers.;

Register

There is  a register of holders of authorisations and provision is made for the public availability of the register. The Minister shall publish annually in Iris Oifiguil a list of holders of authorisations.

There is a requirement for provision for the keeping of records by holders of an authorisation and gives the Minister power to make regulations in relation to the retention of records. It is an offence not to comply with the requirements.

The Minister for Finance may approve codes of practice to assist designated businesses on the application of the legislation.

It is a defence to an offence under the Part where the defendant can show they took reasonable steps and exercised due diligence to avoid committing the offence.

The court may have regard to the code of practice approved by the Minister for Finance in assessing the conduct of the defendant. The provision does not limit the matters to which a court may have regard in determining whether the defendant took reasonable steps and exercised due diligence.

A designated business shall register with the Minister in accordance with procedures which the Minister may prescribe. Failure to register where required is an offence.

Disclosure

The disclosure of information relating to a suspicion of an offence for the purposes of the legislation which is made to a member of An Garda Siochana, or another person concerned with an investigation of money laundering or terrorist financing, shall not be treated as a breach of disclosure of information imposed by any other enactment or rule of law.

Institution Registration

Certain financial institutions that are not otherwise authorised by or registered with the Central Bank must register with the Bank, to enable it to identify the persons whom it is responsible for supervising for money laundering purposes. The failure to register is an offence.

The Bank is to specify a procedure for registering. The register is to be kept in electronic or another form. The details of a person may be removed where the person no longer falls within the class of persons required to register.