Trust & Company Providers
CRIMINAL JUSTICE (MONEY LAUNDERING AND TERRORIST FINANCING) ACT
Interpretation (Chapter 9).
84.— F143[(1)] In this Chapter—
F144[…]
“authorisation” means an authorisation to carry on business as a trust or company service provider granted under this Chapter and, if such an authorisation is renewed or amended under this Chapter, means, unless the context otherwise requires, the authorisation as renewed or amended (as the case may be);
“principal officer” means—
(a) in relation to a body corporate, any person who is a director, manager, secretary or other similar officer of the body corporate or any person purporting to act in such a capacity, or
(b) in relation to a partnership—
(i) any person who is a partner in, or a manager or other similar officer of, the partnership or any person purporting to act in such a capacity, and
(ii) in a case where a partner of the partnership is a body corporate, any person who is a director, manager, secretary or other similar officer of such a partner or any person purporting to act in such a capacity;
F143[“subsidiary” has the meaning assigned to it by section 155 of the Companies Act 1963]
“trust or company service provider” does not include any of the following:
(a) a member of a designated accountancy body;
(b) a barrister or solicitor;
(c) a credit institution or financial institution.
F143[(2) (a) Subject to paragraph (b), in this Chapter a reference to the Minister shall, in a case where the applicant for or the holder of an authorisation is a subsidiary of a credit or financial institution, be construed as a reference to the Central Bank of Ireland.
(b) Paragraph (a) does not apply to—
(i) section 88(5),
(ii) sections 89(5)(b)(ii), 90(3)(b)(ii), 93(6)(b)(ii), 97(6)(b)(ii), 98(2)(b)(ii) and 100(2) in so far as those provisions relate to the specifying of a form by the Minister,
(iii) section 94(3),
(iv) section 101,
(v) section 104(8),
(vi) section 106(7).]
Annotations
Amendments:
F143
Inserted (3.03.2014) by Criminal Justice Act 2013 (19/2013), s. 15(a), (b), (c), S.I. No. 80 of 2014.
F144
Deleted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 23, S.I. No. 188 of 2021.
Meaning of “fit and proper person”.
85.— For the purposes of F145[this Chapter and sections 108B to 108I], a person is not a fit and proper person if any of the following apply:
(a) the person has been convicted of any of the following offences:
(i) money laundering;
(ii) terrorist financing;
(iii) an offence involving fraud, dishonesty or breach of trust;
(iv) an offence in respect of conduct in a place other than the State that would constitute an offence of a kind referred to in subparagraph (i), (ii) or (iii) if the conduct occurred in the State;
(b) in a case where the person is an individual, the person is under 18 years of age;
(c) the person—
(i) has suspended payments due to the person’s creditors,
(ii) is unable to meet other obligations to the person’s creditors, or
(iii) is an individual who is an undischarged bankrupt;
(d) the person is otherwise not a fit and proper person.
Annotations
Amendments:
F145
Substituted (2.12.2019) by European Union (Anti-Money Laundering: Cheque Cashing Offices) Regulations 2019 (S.I. No. 600 of 2019), reg. 2(a).
Authorisations held by partnerships.
86.— (1) A reference in a relevant document to the holder or proposed holder of an authorisation includes, in a case where the holder or proposed holder is a partnership, a reference to each partner of the partnership unless otherwise specified.
(2) A reference in subsection (1) to a relevant document is a reference to any of the following:
(a) this Chapter;
(b) a regulation made for the purposes of this Chapter;
(c) an authorisation or condition of an authorisation;
(d) any notice or direction given under this Chapter;
(e) any determination under this Chapter.
(3) Without prejudice to the generality of subsection (1) or section 111, where any requirement is imposed by or under this Chapter on the holder of an authorisation and failure to comply with the requirement is an offence, each partner of a partnership (being a partnership that is the holder of an authorisation) who contravenes the requirement is liable for the offence.
Prohibition on carrying on business of trust or company service provider without authorisation.
87.— (1) A person commits an offence if the person carries on business as a trust or company service provider without being the holder of an authorisation issued by the Minister under this Chapter.
(2) A person who commits an offence under subsection (1) is liable—
(a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 12 months (or both), or
(b) on conviction on indictment, to a fine or imprisonment not exceeding 5 years (or both).
Application for authorisation.
88.— (1) An individual, body corporate or partnership may apply to the Minister for an authorisation to carry on business as a trust or company service provider.
(2) The application shall—
(a) be in a form provided or specified by the Minister,
(b) specify the name of—
(i) the proposed holder of the authorisation,
(ii) in a case where the proposed holder of the authorisation is a body corporate or partnership or an individual who proposes to carry on business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be), and
(iii) any person who is, or is proposed to be, a beneficial owner of the business,
(c) be accompanied by any consent, in the form provided or specified by the Minister, that is required to enable access to personal data F146[…] held by other persons or bodies and that is required to assist the Minister in determining, for the purposes of section 89 (including as applied by section 92) whether or not the proposed holder and other persons referred to in paragraph (b) are fit and proper persons,
(d) contain such other information, and be accompanied by such documents, as the Minister requests,
(e) be accompanied by the prescribed fee (if any).
(3) The Minister may, by written notice given to an applicant, require the applicant to provide, within the period of not less than 14 days specified in the notice, such additional information and documents as are reasonably necessary to enable the Minister to determine the application.
(4) As soon as practicable after an applicant becomes aware that any information or document provided to the Minister under this section contains a material inaccuracy or has changed in any material particular, including information or a document provided in relation to an application that has been granted, but not including information or a document provided in relation to an application that has been refused, the applicant shall give notice in writing to the Minister of the error or change in circumstances, as the case may be.
(5) For the purposes of subsection (2)(e) (including as applied by section 92), the Minister may prescribe different fees, to accompany applications for authorisations under this Chapter, for different classes of proposed holders of those authorisations and in prescribing such fees may differentiate between the fee to accompany such an application for an authorisation (not being an application for the renewal of such an authorisation) and the fee to accompany an application for the renewal of such an authorisation.
Annotations
Amendments:
F146
Deleted (25.05.2018) by Data Protection Act 2018 (7/2018), s. 213(c), S.I. No. 174 of 2018.
Editorial Notes:
E36
Fee prescribed in respect of application for authorisation made under section (15.07.2010) by Trust or Company Service Provider (Authorisation) (Fees) Regulations 2010 (S.I. No. 348 of 2010), in effect as per reg. 1(2).
E37
Procedure for and conditions pertaining to temporary authorisation in relation to a person who is a trust or company service provider prescribed (15.07.2010) by European Communities (Trust or Company Service Providers) (Temporary Authorisation) Regulations 2010 (S.I No. 347 of 2010), in effect as per reg. 2.
Grant and refusal of applications for authorisation.
89.— (1) The Minister may refuse an application under section 88 only if—
(a) the application does not comply with the requirements of section 88,
(b) the applicant does not provide any additional documents or information in accordance with a notice given under section 88 (3),
(c) the Minister has reasonable grounds to be satisfied that information given to the Minister by the applicant in connection with the application is false or misleading in any material particular,
(d) the Minister has reasonable grounds to be satisfied that any of the following persons is not a fit and proper person:
(i) the proposed holder of the authorisation;
(ii) in a case where the proposed holder of the authorisation is a body corporate or partnership or an individual who proposes to carry on business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be);
(iii) any person who is, or is proposed to be, a beneficial owner of the business concerned,
(e) the applicant has failed to satisfy the Minister that the proposed holder of the authorisation will comply with the obligations imposed on trust or company service providers, as designated persons, under this Part,
(f) the applicant has failed to satisfy the Minister that the proposed holder of the authorisation will comply with each of the following:
(i) any conditions that the Minister would have imposed on the authorisation concerned if the Minister had granted the application;
(ii) any prescribed requirements referred to in section 94;
(iii) section 95;
(iv) section 98;
(v) section 106,
(g) the proposed holder of the authorisation is so structured, or the business of the proposed holder is so organised, that the proposed holder is not capable of being regulated under this Chapter, or as a designated person under this Part, to the satisfaction of the Minister,
(h) in a case where the proposed holder of the authorisation is a body corporate, the body corporate is being wound up,
(i) in a case where the proposed holder of the authorisation is a partnership, the partnership is dissolved by the death or bankruptcy of a partner or because of the operation of a provision of the Partnership Act 1890 or otherwise,
(j) in a case where any person referred to in paragraph (d) has been authorised to carry on business as a trust or company service provider in another Member State, an authority of the other Member State that performs functions similar to those of the Minister under this Chapter has terminated the authority of the person to carry on business as a trust or company service provider in the other Member State, or
(k) in a case where the proposed holder of the authorisation is a subsidiary of a body corporate that is authorised to carry on business as a trust or company service provider in another Member State, an authority of the other Member State that performs functions similar to those of the Minister under this Chapter has terminated the authority of the body corporate to carry on business as a trust or company service provider in the other Member State.
(2) If the Minister proposes to refuse an application, the Minister shall serve on the applicant a notice in writing—
(a) specifying the grounds on which the Minister proposes to refuse the application, and
(b) informing the applicant that the applicant may, within 21 days after the serving of the notice, make written representations to the Minister showing why the Minister should grant the application.
(3) Not later than 21 days after a notice is served on an applicant under subsection (2), the applicant may make written representations to the Minister showing why the Minister should grant the application.
(4) The Minister may refuse an application only after having considered any representations made by the applicant in accordance with subsection (3).
(5) As soon as practicable after refusing an application, the Minister shall serve a written notice of the refusal on the applicant. The notice shall include a statement—
(a) setting out the grounds on which the Minister has refused the application, and
(b) informing the applicant that—
(i) the applicant may appeal to an Appeal Tribunal against the refusal, and
(ii) if the applicant proposes to appeal to an Appeal Tribunal against the refusal, the applicant may, within one month after being served with the notice of refusal, serve a notice of intention to appeal on the Minister, in the form provided or specified by the Minister.
(6) If the Minister does not refuse the application, he or she shall grant it and, on granting the application, the Minister shall—
(a) record the appropriate particulars of the holder of the authorisation in the register of persons authorised to carry on business as a trust or company service provider, and
(b) issue the applicant with an authorisation that authorises the holder of the authorisation to carry on business as a trust or company service provider.
Minister may impose conditions when granting an application for an authorisation.
90.— (1) In granting an application for an authorisation under this Chapter, the Minister may impose on the holder of the authorisation any conditions that the Minister considers necessary for the proper and orderly regulation of the holder’s business as a trust or company service provider and, in particular, for preventing the business from being used to carry out money laundering or terrorist financing.
(2) The Minister shall specify any such conditions in the authorisation granted to the holder or in one or more documents annexed to that authorisation.
(3) If, under this section, the Minister imposes any conditions on an authorisation, the Minister shall serve on the holder of the authorisation, together with the authorisation, a written notice of the imposition of the conditions that includes a statement—
(a) setting out the grounds on which the Minister has imposed the conditions, and
(b) informing the holder that—
(i) the holder may appeal to an Appeal Tribunal against the imposition of any of the conditions, and
(ii) if the holder proposes to appeal to an Appeal Tribunal against the imposition of any of the conditions, the holder may, within one month after being served with the notice of the imposition of conditions, serve a notice of intention to appeal on the Minister, in the form provided or specified by the Minister.
Terms of authorisation.
91.— (1) An authorisation comes into force on the day on which the authorisation is granted, or, if a later date is specified in the authorisation, on that later date, whether or not an appeal against any conditions of the authorisation is made under section 100.
(2) An authorisation remains in force, unless sooner revoked under this Chapter, for a period of 3 years from the date on which it comes into force.
(3) A reference in this section to an authorisation does not include a reference to an authorisation that is renewed under section 92.
Renewal of authorisation.
92.— (1) The Minister may renew an authorisation on the application of the holder of the authorisation unless the authorisation has been revoked under this Chapter.
(2) Sections 88 to 90 apply, with any necessary modifications, in relation to an application for the renewal of an authorisation.
(3) An application for the renewal of an authorisation shall be made not less than 10 weeks before the end of the period for which it was granted.
(4) In addition to the grounds specified in section 89 (as applied by subsection (2)), the Minister may refuse to grant a renewed authorisation on the grounds that the application for renewal has been made less than 10 weeks before the end of the period for which the authorisation was granted.
(5) If an application for the renewal of an authorisation is made within the time provided for in subsection (3) and is not determined by the Minister before the end of the period for which the authorisation was granted, the authorisation remains in force until the date on which the application is determined.
(6) A renewed authorisation comes into force on—
(a) in a case where subsection (5) applies, the date on which the application is determined, or
(b) in any other case, the day immediately following the end of the period for which the authorisation that it renews was granted or last renewed, as the case may be.
(7) A renewed authorisation, unless sooner revoked under this Chapter, remains in force for a period of 3 years from the date on which it comes into force under subsection (6).
(8) Subsections (6) and (7) have effect whether or not an appeal against any conditions of the authorisation is made under section 100.
Annotations
Editorial Notes:
E38
Fee prescribed in respect of application for renewal of authorisation made under section (15.07.2010) by Trust or Company Service Provider (Authorisation) (Fees) Regulations 2010 (S.I. No. 348 of 2010), in effect as per reg. 1(2).
Minister may amend authorisation.
93.— (1) The Minister may amend an authorisation granted under this Chapter by varying, replacing or revoking any conditions or by adding a new condition if the Minister considers that the variation, replacement, revocation or addition is necessary for the proper and orderly regulation of the business of the holder of the authorisation as a trust or company service provider and, in particular, for preventing the business from being used to carry out money laundering or terrorist financing.
(2) If the Minister proposes to amend an authorisation under this section, the Minister shall serve on the holder of the authorisation a notice in writing informing the holder of the Minister’s intention to amend the authorisation.
(3) The notice shall—
(a) specify the proposed amendment, and
(b) inform the holder that the holder may, within 21 days after service of the notice, make written representations to the Minister showing why the Minister should not make that amendment.
(4) Not later than 21 days after a notice is served under subsection (2) on the holder of an authorisation, the holder may make written representations to the Minister showing why the Minister should not amend the authorisation.
(5) The Minister may amend an authorisation only after having considered any representations to the Minister made in accordance with subsection (4) showing why the Minister should not amend the authorisation.
(6) The Minister shall serve written notice of any amendment of an authorisation on the holder of the authorisation. The notice shall include a statement—
(a) setting out the grounds on which the Minister has amended the authorisation, and
(b) informing the holder that—
(i) the holder may appeal to an Appeal Tribunal against the amendment, and
(ii) if the holder proposes to appeal to an Appeal Tribunal against the amendment, the holder may, within one month after being served with the notice of amendment, serve a notice of intention to appeal on the Minister, in the form provided or specified by the Minister.
(7) The amendment of an authorisation under this section takes effect from the date of the notice of amendment or, if a later date is specified in the notice, from that date, whether or not an appeal against the amendment is made under section 100.
Offence to fail to comply with conditions or prescribed requirements.
94.— (1) The holder of an authorisation commits an offence if the holder fails to comply with—
(a) any condition of the authorisation, or
(b) any prescribed requirements.
(2) A person who commits an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding €2,000, or
(b) on conviction on indictment, to a fine not exceeding €100,000.
(3) The Minister may prescribe requirements for the purposes of subsection (1)(b) only if the Minister is satisfied that it is necessary to do so for the proper and orderly regulation of the business of trust or company service providers and, in particular, for preventing such businesses from being used to carry out money laundering orterrorist financing.
Annotations
Modifications (not altering text):
C12
Application extended (15.07.2010) by European Communities (Trust or Company Service Providers) (Temporary Authorisation) Regulations 2010 (S.I No. 347 of 2010), reg. 10, in effect as per reg. 2.
10. A temporary authorisation shall be subject to any prescribed requirements referred to in section 94 of the Act of 2010.
Editorial Notes:
E39
A fine of €2,000 translates into a class C fine, not greater than €2,500, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(2) and table ref. no. 1, S.I. No. 662 of 2010.
Holder of authorisation to ensure that principal officers and beneficial owners are fit and proper persons.
95.— (1) The holder of an authorisation shall take reasonable steps to ensure that the following persons are fit and proper persons:
(a) in a case where the holder of the authorisation is a body corporate, a partnership or an individual carrying on business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be);
(b) any person who is a beneficial owner of the business concerned.
(2) A person who commits an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding €2,000, or
(b) on conviction on indictment, to a fine not exceeding €100,000.
Annotations:
Editorial Notes:
E40
A fine of €2,000 translates into a class C fine, not greater than €2,500, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(2) and table ref. no. 1, S.I. No. 662 of 2010.
Revocation of authorisation by Minister on application of holder.
96.— The Minister shall revoke an authorisation on the application of the holder of the authorisation, but only if satisfied that the holder of the authorisation has fully complied with each of the following:
(a) any conditions of the authorisation;
(b) any prescribed requirements referred to in section 94;
(c) section 95;
(d) section 98;
(e) section 106.
Revocation of authorisation other than on application of holder.
97.— (1) The Minister may revoke an authorisation only if the Minister has reasonable grounds to be satisfied of any of the following:
(a) the holder of the authorisation has not commenced to carry on business as a trust or company service provider within 12 months after the date on which the authorisation was granted;
(b) the holder of the authorisation has not carried on such a business within the immediately preceding 6 months;
(c) the authorisation was obtained by means of a false or misleading representation;
(d) any of the following persons is not a fit and proper person:
(i) the holder of the authorisation;
(ii) in a case where the holder of the authorisation is a body corporate, a partnership or an individual carrying on business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be);
(iii) any person who is a beneficial owner of the business concerned;
(e) the holder of the authorisation has contravened or is contravening the obligations imposed on trust or company service providers, as designated persons, under this Part;
(f) the holder of the authorisation has contravened or is contravening any of the following:
(i) a condition of the authorisation;
(ii) a prescribed requirement referred to in section 94;
(iii) section 95;
(iv) section 98;
(v) section 106;
(g) the holder of the authorisation is so structured, or the business of the holder is so organised, that the holder is not capable of being regulated under this Chapter or as a designated person under this Part;
(h) in a case where the holder of the authorisation is a body corporate, the body corporate is being wound up;
(i) in a case where the holder of the authorisation is a partnership, the partnership is dissolved by the death or bankruptcy of a partner or because of the operation of a provision of the Partnership Act 1890 or otherwise;
(j) in a case where any person referred to in paragraph (d) has been authorised to carry on business as a trust or company service provider in another Member State, an authority of the other Member State that performs functions similar to those of the Minister under this Chapter has terminated the authority of the person to carry on business as a trust or company service provider in the other Member State;
(k) in a case where the holder of the authorisation is a subsidiary of a body corporate that is authorised to carry on business as a trust or company service provider in another Member State, an authority of the other Member State that performs functions similar to those of the Minister under this Chapter has terminated the authority of the body corporate to carry on business as a trust or company service provider in the other Member State.
(2) If the Minister proposes to revoke an authorisation under this section, the Minister shall serve on the holder of the authorisation a notice in writing informing the holder of the Minister’s intention to revoke the authorisation.
(3) The notice shall—
(a) specify the grounds on which the Minister proposes to revoke the authorisation, and
(b) inform the holder that the holder may, within 21 days after service of the notice, make written representations to the Minister showing why the Minister should not revoke the authorisation.
(4) Not later than 21 days after a notice is served under subsection (2) on the holder of an authorisation, the holder may make written representations to the Minister showing why the Minister should not revoke the authorisation.
(5) The Minister may revoke the authorisation only after having considered any representations made by the holder of the authorisation in accordance with subsection (4).
(6) As soon as practicable after revoking an authorisation under this section, the Minister shall serve written notice of the revocation on the person who was the holder of the authorisation. The notice shall include a statement—
(a) setting out the reasons for revoking the authorisation, and
(b) informing the holder that—
(i) the holder may appeal to an Appeal Tribunal against the revocation, and
(ii) if the holder proposes to appeal to an Appeal Tribunal against the revocation, the holder may, within one month after being served with the notice of revocation, serve a notice of intention to appeal on the Minister in the form provided or specified by the Minister.
(7) The revocation of an authorisation under this section takes effect from the date of the notice of revocation or, if a later date is specified in the notice, from that date, whether or not an appeal against the revocation is made under section 100.
Direction not to carry out business other than as directed.
98.— (1) If the Minister reasonably believes that there may be grounds for revoking an authorisation under section 97, the Minister may serve on the holder of the authorisation a direction in writing prohibiting the holder from carrying on business as a trust or company service provider other than in accordance with conditions specified by the Minister.
(2) The Minister shall include in a direction under this section a statement—
(a) setting out F147[the reasons] for giving the direction,
(b) informing the holder of the authorisation concerned that—
(i) the holder may appeal to an Appeal Tribunal against the direction, and
(ii) if the holder proposes to appeal to an Appeal Tribunal against the direction, the holder may, within one month after being served with the direction, serve a notice of intention to appeal on the Minister in the form provided or specified by the Minister,
and
(c) specifying the conditions with which the holder of the authorisation is required to comply.
(3) The Minister may, by notice in writing served on the holder of the authorisation concerned, amend or revoke a direction given under this section.
(4) Without prejudice to the generality of subsection (3), the Minister may, by notice in writing given to the holder of the authorisation concerned, extend the period during which a direction remains in force by a further period or periods not exceeding 6 months.
(5) A direction under this section takes effect from the date on which it is given or, if a later date is specified in the direction, from that date, whether or not an appeal against the direction is made under section 100.
(6) A direction under this section ceases to have effect—
(a) at the end of the period, not exceeding 6 months, specified in the direction, or if the period is extended under subsection (4), at the end of the extended period, or
(b) on the revocation of the holder’s authorisation under this Chapter,
whichever occurs first.
(7) A person who contravenes a direction given under this section, or fails to comply with a condition contained in the direction, commits an offence.
(8) A person who commits an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding €5,000, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years (or both).
Annotations
Amendments:
F147
Substituted (3.03.2014) by Criminal Justice Act 2013 (19/2013), s. 16(a), S.I. No. 80 of 2014.
Editorial Notes:
E41
A fine of €5,000 translates into a class A fine, not greater than €5,000, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(3) and table ref. no. 1, S.I. No. 662 of 2010.
Minister to publish notice of revocation or direction.
99.— As soon as practicable after revoking an authorisation under section 96 or 97, or giving a direction under section 98, the Minister shall publish in Iris Oifigiúil a notice giving particulars of the revocation or direction.
Appeals against decisions of Minister.
100.— (1) In this section, “appealable decision” means a decision of the Minister under—
(a) section 89 to refuse an application for an authorisation,
(b) section 89, as applied by section 92, to refuse an application for the renewal of an authorisation,
(c) section 90 to impose conditions on an authorisation,
(d) section 90, as applied by section 92, to impose conditions on an authorisation that is renewed,
(e) section 93 to amend an authorisation,
(f) section 97 to revoke an authorisation, or
(g) section 98 to serve a direction on the holder of an authorisation.
(2) A person aggrieved by an appealable decision may, within one month after being served with notice of the decision, serve a notice of the person’s intention to appeal against the decision on the Minister in the form provided or specified by the Minister.
(3) On receipt of the notification, the Minister shall refer the matter to an Appeal Tribunal established under section 101.
(4) The Appeal Tribunal may invite the person and the Minister to make written submissions to it in relation to the appeal.
(5) The Appeal Tribunal shall notify the person, in writing, of the following matters:
(a) the date and time of the hearing of the appeal;
(b) that the person may attend the hearing;
(c) that the person may be represented at the hearing by a barrister, solicitor or agent.
(6) An Appeal Tribunal may refuse to hear, or continue to hear, an appeal under this section if it is of the opinion that the appeal is vexatious, frivolous, an abuse of process or without substance or foundation.
(7) The Appeal Tribunal shall (unless the appeal is withdrawn, or discontinued or dismissed under subsection (6)) determine the appeal by—
(a) affirming the decision of the Minister to which the appeal relates, or
(b) substituting its determination for that decision.
(8) The Appeal Tribunal shall notify its determination in writing to the Minister and the person appealing.
(9) Within 3 months after the date on which an appeal is determined by an Appeal Tribunal, the Minister or person who appealed may appeal to the High Court on any question of law arising from the determination.
Annotations
Modifications (not altering text):
C13
Appeal tribunal established for period commencing on 22nd day of May 2013 and ending on 21st day of May 2018 to adjudicate on appeals under section (16.05.2013) by Trust or Company Service Provider Authorisation (Appeal Tribunal) (Establishment) Order 2013 (S.I. No. 167 of 2013), reg. 3.
Appeal Tribunals.
101.— F148[…]
Annotations
Amendments:
F148
Repealed (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 24(a), S.I. No. 188 of 2021.
Editorial Notes:
E42
Previous affecting provision: power pursuant to subs. (1) exercised (19.11.2018 to 18.11.2023) by Trust or Company Service Provider Authorisation (Appeal Tribunal) (Establishment) Order 2018 (S.I. No. 475 of 2018). The establishment of two appeal tribunals in identical terms is explained in the explanatory memorandum. Enabling provision repealed as per F-note above.
E43
Previous affecting provision: power pursuant to subs. (1) exercised (19.11.2018 to 18.11.2023) by Trust or Company Service Provider Authorisation (Appeal Tribunal) (Establishment) Order 2018 (S.I. No. 474 of 2018). The establishment of two appeal tribunals in identical terms is explained in the explanatory memorandum. Enabling provision repealed as per F-note above.
E44
Previous affecting provision: power pursuant to subs. (1) exercised (22.05.2013 to 21.05.2018) by Trust or Company Service Provider Authorisation (Appeal Tribunal) (Establishment) Order 2013 (S.I. No. 167 of 2013); spent and enabling provision repealed as per F-note above.
F149[
Appeal Tribunal
101A.— (1) On the commencement of section 24 of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 there shall stand established a tribunal which shall be known as the Appeal Tribunal to consider and determine appeals made pursuant to this Act.
(2) The Appeal Tribunal shall be independent in the exercise of its functions under this Act and shall regulate its own procedures.
(3) The Appeal Tribunal may sit in divisions of itself to consider appeals.
(4) The Appeal Tribunal shall consist of a chairperson and such number of ordinary members as the Minister considers necessary from time to time for the efficient discharge of its functions.
(5) The chairperson and the ordinary members of the Appeal Tribunal shall be appointed by the Minister and the appointment shall be subject to such terms and conditions, including terms and conditions relating to remuneration, as the Minister may determine with the consent of the Minister for Public Expenditure and Reform.
(6) Each member of the Appeal Tribunal shall be a practising barrister or solicitor of not less than 10 years’ practice.
(7) The term of office of a member of the Appeal Tribunal shall be 5 years and a member of the Appeal Tribunal shall be eligible for re-appointment as such member for a second term not exceeding 5 years.
(8) A member of the Appeal Tribunal may at any time resign his or her office as such member by giving notice in writing to the Minister and the resignation shall take effect on and from the date of receipt of the notice.
(9) A member of the Appeal Tribunal may be removed from office by the Minister for stated misbehaviour or if, in the opinion of the Minister, the member has become incapable through ill-health or otherwise of effectively performing the functions of the Appeal Tribunal.
(10) If a member of the Appeal Tribunal dies, resigns, becomes disqualified or is removed from office, the Minister may appoint another person to be a member of the Appeal Tribunal to fill the casual vacancy so occasioned and the person so appointed shall be appointed in the same manner as the member of the Appeal Tribunal who occasioned the vacancy and shall hold office for the remainder of the term of office for which his or her predecessor was appointed.
(11) Where a member of the Appeal Tribunal is—
(a) nominated as a member of Seanad Éireann,
(b) elected as a member of either House of the Oireachtas or to be a member of the European Parliament,
(c) regarded pursuant to Part XIII of the second Schedule to the European Parliament Elections Act 1997 as having been elected to that Parliament,
(d) elected or co-opted as a member of a local authority,
(e) appointed to judicial office, or
(f) appointed Attorney General,
he or she shall thereupon cease to be a member of the Tribunal.]
Annotations:
Amendments:
F149
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 24(b), S.I. No. 188 of 2021.
Editorial Notes:
E45
The section heading is taken from the amending section in the absence of one included in the amendment.
Provision of information by Garda Síochána as to whether or not person is fit and proper person.
102.— (1) The Minister may request the Commissioner of the Garda Síochána to provide any information that is required to assist the Minister in determining, for the purposes of this Chapter, whether or not any of the following persons is a fit and proper person:
(a) the holder or proposed holder of an authorisation;
(b) in a case where the holder or proposed holder of the authorisation is a body corporate, a partnership or an individual carrying on, or proposing to carry on, business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be);
(c) any person who is a beneficial owner of the business of the holder or proposed holder of the authorisation concerned.
(2) Notwithstanding any other enactment or rule of law, the Commissioner of the Garda Síochána shall provide the Minister with information in accordance with a request of the Minister under this section.
Extension of powers under Chapter 8 for purposes related to this Chapter.
103.— (1) The functions of a State competent authority, in relation to designated persons, under Chapter 8, may be performed by the Minister F150[to assist in carrying out] functions in relation to trust or company service providers under this Chapter.
(2) For that purpose, sections 66 to 83 apply with any necessary modifications, including the following:
(a) a relevant authorised officer has, in respect of trust or company service providers within the meaning of this Chapter, all of the functions that an authorised officer appointed by a State competent authority under section 72 has in respect of designated persons;
(b) a judge of the District Court, in the case of an application under section 78 by a relevant authorised officer in respect of a trust or company service provider, has all of the functions that such a judge has, in the case of a similar application under that section by an authorised officer appointed by a State competent authority under section 72, in respect of a designated person;
(c) section 79 applies so as to enable a relevant authorised officer to be accompanied and assisted in the exercise of the officer’s powers as referred to in that section;
(d) section 80 applies to a person who engages in conduct, referred to in that section, in relation to—
(i) a relevant authorised officer, and
(ii) any person accompanying and assisting the officer in accordance with section 79 as applied by paragraph (c).
(3) This section has effect whether or not the Minister is the State competent authority for any class of trust or company service providers.
(4) In this section “relevant authorised officer” means an authorised officer appointed by the Minister under section 72, as applied by this section.
Annotations
Amendments:
F150
Substituted (3.03.2014) by Criminal Justice Act 2013 (19/2013), s. 16(b), S.I. No. 80 of 2014.
Register of persons holding authorisations.
104.— (1) The Minister shall establish and maintain a register of persons authorised under this Chapter to carry on business as a trust or company service provider containing—
(a) the name and the address of the principal place of business of each person authorised to carry on business as a trust or company service provider, and
(b) such other information as may be prescribed.
(2) The register may be in book form, electronic form or such other form as the Minister may determine. The register may be maintained in an electronic, mechanical or other non-written form only if it is capable of being reproduced in a written form.
(3) The Minister shall maintain the register F151[at an office in the State].
(4) Members of the public are entitled, without charge, to inspect the register F151[during ordinary business hours].
F152[(5) The Minister may publish a register in written, electronic or other form and a member of the public is entitled to obtain a copy of a register or of an entry in a register on payment of such reasonable copying charges as may be prescribed (if any).]
(6) The holder of an authorisation to whom an entry in the Register relates shall, as soon as practicable after the holder becomes aware of any error in the entry, or any change in circumstances that is likely to have a bearing on the accuracy of the entry, give notice in writing to the Minister of the error or change in circumstances, as the case may be.
(7) In any legal proceedings, a certificate purporting to be signed by the Minister and stating that a person—
(a) is recorded in the Register as the holder of an authorisation,
(b) is not recorded in the Register as the holder of an authorisation,
(c) was recorded in the Register as being, at a specified date or during a specified period, the holder of an authorisation, or
(d) was not recorded in the Register as being, at a specified date or during a specified period, the holder of an authorisation,
is evidence of the matter referred to in paragraph (a), (b), (c) or (d) (as the case may be), and is taken to have been signed by the person purporting to have signed it, unless the contrary is shown.
(8) The Minister may prescribe particulars for the purposes of subsection (1) (b) or section 105 only if satisfied that those particulars reasonably relate to the business of trust or company service providers or to the regulation of the business of trust or company service providers under this Part.
Annotations
Amendments:
F151
Substituted (3.03.2014) by Criminal Justice Act 2013 (19/2013), s. 16(c), S.I. No. 80 of 2014.
F152
Substituted (14.06.2013) by Criminal Justice Act 2013 (19/2013), s. 17, S.I. No. 196 of 2013.
Minister to publish list of persons holding authorisations.
105.— The Minister shall, not less frequently than once during every period of 12 months after the commencement of this section, publish in Iris Oifigiúil a list of persons holding authorisations, together with other prescribed particulars (if any).
Holders of authorisations to retain certain records.
106.— (1) The holder of an authorisation shall—
(a) retain at an office or other premises in the State such records as may be specified by the Minister, and
(b) notify the Minister in writing of the address of any office or other premises where those records are retained.
(2) The requirement imposed by subsection (1) is in addition to, and not in substitution for, any other requirements imposed under any other enactment or rule of law with respect to the retention of records by the holder of an authorisation, including the requirements specified in section 55.
(3) The holder of an authorisation shall retain the records referred to in subsection (1) for a period of not less than 6 years after—
(a) in the case of a record made in relation to a customer of the holder, the last dealing with the customer, or
(b) in any other case, the record is made.
(4) The holder of an authorisation may keep the records referred to in subsection (1) wholly or partly in an electronic, mechanical or other non-written form only if they are capable of being reproduced in a written form.
(5) The obligations that are imposed on a holder of an authorisation under this section continue to apply to a person who has been the holder of an authorisation, but has ceased to hold an authorisation or to carry on business as a trust or company service provider.
(6) A requirement for the holder of an authorisation that is a body corporate to retain any record under this section applies to any body corporate that is a successor to, or a continuation of, the body corporate.
(7) The Minister may make regulations prescribing requirements relating to the retention of records referred to in this section of a body corporate that is wound up or a partnership that is dissolved.
(8) A person who fails to comply with this section commits an offence and is liable—
(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years (or both).
Chapter 9A
Virtual Asset Service Providers
Interpretation
106A.— In this Chapter—
“Act of 1942” means the Central Bank Act 1942;
“Bank” means the Central Bank of Ireland;
“FATF” means the Financial Action Task Force on Money Laundering and Countering the Financing of Terrorism established by the Paris G7 Summit of 1989;
“prescribed” means prescribed by regulations made by the Bank;
“principal officer” means—
(a) in relation to a body corporate, any person who is a director, manager, secretary or other similar officer of the body corporate or any person purporting to act in such a capacity, or
(b) in relation to a partnership—
(i) any person who is a partner in, or a manager or other similar officer of, the partnership or any person purporting to act in such a capacity, and
(ii) in a case where a partner of the partnership is a body corporate, any person who is a director, manager, secretary or other similar officer of such a partner or any person purporting to act in such a capacity;
“registration” means a registration granted by the Bank under this Chapter to permit a person to carry on business as a virtual asset service provider and, if such a permission is amended under this Chapter, means the registration as amended.]
Annotations:
Amendments:
F153
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F154[
Fit and proper person
106B.— For the purposes of this Chapter, a person is not a fit and proper person if any of the following apply:
(a) the person has been convicted of any of the following offences:
(i) money laundering;
(ii) terrorist financing;
(iii) an offence involving fraud, dishonesty or breach of trust;
(iv) an offence in respect of conduct in a place other than the State that would constitute an offence of a kind referred to in subparagraph (i), (ii) or (iii) if the conduct occurred in the State;
(b) in a case where the person is an individual, the person is under 18 years of age;
(c) the person—
(i) has suspended payments due to the person’s creditors,
(ii) is unable to meet other obligations to the person’s creditors, or
(iii) is an individual who is an undischarged bankrupt;
(d) the person is otherwise not a fit and proper person.]
Annotations:
Amendments:
F154
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F155[
Registrations held by partnerships
106C.— (1) A reference in a relevant document to a holder or proposed holder of a registration includes, in a case where the holder or proposed holder is a partnership, a reference to each partner of the partnership unless otherwise specified.
(2) A reference in subsection (1) to a relevant document is a reference to any of the following:
(a) this Chapter;
(b) a regulation made for the purposes of this Chapter;
(c) a registration or condition of a registration;
(d) any notice or direction given under this Chapter;
(e) any determination under this Chapter.
(3) Without prejudice to the generality of subsection (1) or section 111, where any requirement is imposed by or under this Chapter on the holder of a registration, and failure to comply with the requirement is an offence, each partner of a partnership (being a partnership that is the holder of a registration) who contravenes the requirement is liable for the offence.]
Annotations:
Amendments:
F155
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F156[
Scope of Bank’s supervision – performance of certain functions
106D.— (1) The functions conferred on the Bank under—
(a) Parts II, IIIC, VIIA, VIIIA and IX of the Act of 1942,
(b) Parts 3 and 4 of the Central Bank Reform Act 2010, and
(c) Parts 2, 3, 7 and 9 of the Central Bank (Supervision and Enforcement) Act 2013,
shall, in addition to being performable for the purposes to which those provisions relate, be performable for the purposes of ensuring compliance with the Fourth Money Laundering Directive, the Fifth Money Laundering Directive and the Recommendations of FATF.
(2) The Minister, where he or she considers it appropriate to do so and following consultation with the Bank, may make regulations conferring additional functions connected with the functions conferred by or under any enactment on the Bank for the purpose of ensuring compliance with the Fourth Money Laundering Directive, the Fifth Money Laundering Directive and the Recommendations of FATF.
(3) Regulations under subsection (2) may provide for such additional functions as may be necessary for the more effective implementation of Recommendations made from time to time by FATF to address and mitigate the risks related to money laundering and terrorist financing.]
Annotations:
Amendments:
F156
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F157[
Obligation on virtual asset service providers to register with Bank
106E.— (1) A person shall not carry on business as a virtual asset service provider, claim to be a virtual asset service provider or represent that the person is a virtual asset service provider unless the person is registered with the Bank under this Chapter.
(2) A person who contravenes subsection (1) commits an offence and is liable—
(a) on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 5 years or both.]
Annotations:
Amendments:
F157
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021. A class A fine means a fine not greater than €5,000 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(1), S.I. No. 662 of 2010.
F158[
Transitional provision for existing virtual asset service providers
106F.— (1) Notwithstanding section 106E, a person carrying on business as a virtual asset service provider immediately before the coming into operation of this Chapter, is taken to be registered to carry on business as a virtual asset service provider until the Bank has granted or refused an application to register the person, provided that the person applies to the Bank under section 106G for registration, no later than 3 months after that section comes into operation.
(2) Where a person is taken to be registered to carry on business as a virtual asset service provider under subsection (1), the Bank may do either or both of the following:
(a) impose on that person such conditions or requirements or both as the Bank considers appropriate relating to the proper and orderly regulation and supervision of virtual asset service providers;
(b) direct that person not to carry on business as a virtual asset service provider for such period (not exceeding 3 months) as is specified in the direction.
(3) A condition or requirement imposed, or a direction given, under this section is an appealable decision for the purposes of Part VIIA of the Act of 1942.]
Annotations:
Amendments:
F158
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F159[
Application for registration
106G.— (1) An individual, body corporate or partnership may apply to the Bank to be registered under this section.
(2) An application for registration under this section shall—
(a) be in a form provided or specified by the Bank,
(b) specify the name of—
(i) the applicant,
(ii) in a case where the applicant is a body corporate or partnership, any principal officer of the body corporate or partnership (as the case may be), and
(iii) any person who is, or is proposed to be, a beneficial owner of the applicant,
(c) specify the address at which the business of a virtual asset service provider is proposed to be carried on,
(d) contain such other information, and be accompanied by such documents, as the Bank may reasonably request including, for the purposes of the Bank assessing whether persons referred to in paragraph (b) can comply with the provisions of Part 4 and are fit and proper persons, such information and documents as the Bank may reasonably require relating to the steps taken by the applicant to ensure that those persons are fit and proper persons and the process of verification carried out by the applicant for the purposes of so ensuring, and
(e) be accompanied by such fees as are payable in accordance with section 32E of the Act of 1942 in respect of the performance by the Bank of its functions under the Act of 2010.
(3) For the purposes of assessing whether a beneficial owner is a fit and proper person, the Bank may request the person by notice in writing to attend before a specified officer or employee of the Bank for interview.
(4) Nothing in this section or any notice given by the Bank under this section requires a person—
(a) to produce to the Bank a document that the person could not have been compelled to produce to a court,
(b) to give to the Bank information that the person could not have been compelled to give to a court, or
(c) to answer a question (either in writing or at interview) that the person could not have been compelled to answer in a court.
(5) The Bank may, by written notice given to an applicant, require the applicant to provide, within the period of not less than 14 days specified in the notice, such additional information and documents as are reasonably necessary to enable the Bank to determine the application for registration.]
Annotations:
Amendments:
F159
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F160[
Grant and refusal of applications for registration
106H.— (1) The Bank may refuse an application for registration under section 106G only if—
(a) the application does not comply with the requirements of section 106G,
(b) the applicant does not provide any additional documents or information in accordance with a notice given under section 106G,
(c) the Bank has reasonable grounds to be satisfied that information given to the Bank by the applicant in connection with the application is false or misleading in any material particular,
(d) the Bank has reasonable grounds to be satisfied that any of the following persons, is not a fit and proper person:
(i) the applicant;
(ii) in a case in which the applicant is a body corporate or partnership, any principal officer of the body corporate or partnership (as the case may be);
(iii) any person who is, or is proposed to be, a beneficial owner of the applicant,
(e) the applicant has failed to satisfy the Bank that the applicant would, if registered, comply with the obligations imposed on the applicant under this Chapter, or as a designated person under this Part,
(f) the applicant has failed to satisfy the Bank that the applicant’s business risk assessment, policies and procedures are adequate or fit for purpose,
(g) the applicant has failed to satisfy the Bank that it has in place the resources, procedures and arrangements for the provision of the business of a virtual asset service provider and the performance of activities, taking into account the nature, scale and complexity of its business and all the obligations that the provider has to comply with as a designated person under this Act,
(h) the applicant has failed to satisfy the Bank that the applicant would, if registered, comply with each of the following:
(i) any conditions that the Bank would have imposed on the registration concerned, if the Bank had granted the application;
(ii) any prescribed requirements referred to in section 106M,
(i) the applicant is so structured, or the business of the applicant is so organised, that the applicant is not capable of being regulated under this Chapter, or as a designated person under this Part, to the satisfaction of the Bank,
(j) where the applicant fails to demonstrate, where applicable, that it can manage and mitigate the risks of engaging in activities that involve the use of anonymity-enhancing technologies or mechanisms and other technologies that obfuscate the identity of the sender, recipient, holder or beneficial owner of a virtual asset,
(k) in a case where the applicant is a body corporate, the body corporate is being wound up,
(l) in a case where the applicant is a partnership, the partnership is dissolved by the death or bankruptcy of a partner or because of the operation of a provision of the Partnership Act 1890 or otherwise,
(m) in a case where any person referred to in paragraph (d) has been registered to carry on business as a virtual asset service provider in another Member State, and an authority of the other Member State, that performs functions similar to those of the Bank under this Chapter, has terminated the permission of the person to carry on business as a virtual asset service provider in the other Member State,
(n) in a case where the applicant is a subsidiary of a body corporate has been registered to carry on business as a virtual asset service provider in another Member State, and an authority of the other Member State, that performs functions similar to those of the Bank under this Chapter, has terminated the permission of the body corporate to carry on business as a virtual asset service provider in the other Member State, or
(o) there are objective and demonstrable grounds for believing that the management body of the applicant may pose a threat to its sound and prudent management and to the adequate consideration of its clients and the integrity of the market.
(2) If the Bank proposes to refuse an application, the Bank shall serve on the applicant a notice in writing—
(a) specifying the grounds on which the Bank proposes to refuse the application, and
(b) informing the applicant that the applicant may, within 21 days after the service of the notice, make written representations to the Bank showing why the Bank should grant the application.
(3) Not later than 21 days after a notice is served on an applicant under subsection (2), the applicant may make written representations to the Bank showing why the Bank should grant the application.
(4) The Bank may refuse an application only after having considered any representations made by the applicant in accordance with subsection (3).
(5) As soon as practicable after refusing an application, the Bank shall serve a written notice of the refusal on the applicant including a statement setting out the grounds on which the Bank has refused the application.
(6) A decision of the Bank to refuse an application under section 106G is an appealable decision for the purposes of Part VIIA of the Act of 1942.
(7) If the Bank does not refuse the application, it shall grant it and, on granting the application, the Bank shall—
(a) record the appropriate particulars of the applicant in the register of persons permitted by the Bank to carry on business as a virtual asset service provider, and
(b) issue the applicant with a registration that permits the applicant to carry on business as a virtual asset service provider.]
Annotations:
Amendments:
F160
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F161[
Bank may impose conditions when granting an application for registration
106I.— (1) In granting an application for registration under this Chapter, the Bank may impose on the holder of the registration any conditions that the Bank considers necessary for the proper and orderly regulation of the holder’s business as a virtual asset service provider and, in particular, for preventing the business from being used to carry out money laundering or terrorist financing.
(2) The Bank shall specify any such conditions in the registration granted to the holder or in one or more documents annexed to that registration.
(3) If, under this section, the Bank imposes any conditions on a registration, the Bank shall serve on the holder of the registration, together with the registration, a written notice of the imposition of the conditions that includes a statement setting out the grounds on which the Bank has imposed the conditions.
(4) A decision of the Bank to register a person subject to conditions under subsection (1) is an appealable decision for the purposes of Part VIIA of the Act of 1942.]
Annotations:
Amendments:
F161
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F162[
Terms of registration
106J.— (1) A registration comes into force on the day on which the registration is granted, or, if a later date is specified in the registration, on that later date, whether or not an appeal against any conditions of registration is made under section 106I.
(2) A registration remains in force, unless sooner revoked under this Chapter from the date on which it comes into force.]
Annotations:
Amendments:
F162
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F163[
Bank may amend registration
106K.— (1) The Bank may amend a registration granted under this Chapter by varying, replacing or revoking any conditions or by adding a new condition if the Bank considers that the variation, replacement, revocation or addition is necessary for the proper and orderly regulation of the business of the holder of the registration as a virtual asset service provider and, in particular, for preventing the business from being used to carry out money laundering or terrorist financing.
(2) If the Bank proposes to amend a registration under this section, the Bank shall serve on the holder of the registration, a notice in writing informing the holder of the Bank’s intention to amend the registration.
(3) The notice shall—
(a) specify the proposed amendment, and
(b) inform the holder of the registration that the holder may, within 21 days after service of the notice, make written representations to the Bank showing why the Bank should not make that amendment.
(4) Not later than 21 days after a notice is served under subsection (2) on the holder of a registration, the holder may make written representations to the Bank showing why the Bank should not amend the registration.
(5) The Bank may amend a registration only after having considered any representations to the Bank made in accordance with subsection (4) showing why the Bank should not amend the registration.
(6) The Bank shall serve written notice of any amendment of a registration on the holder of the registration including a statement setting out the grounds on which the Bank has amended the registration.
(7) A decision of the Bank to amend a registration granted under this Chapter is an appealable decision for the purposes of Part VIIA of the Act of 1942.
(8) The amendment of a registration under this section takes effect from the date of the notice of amendment or, if a later date is specified in the notice, from that date, whether or not an appeal against the amendment is made under this section.]
Annotations:
Amendments:
F163
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F164[
Regulatory disclosure statement
106L.— (1) Subject to subsection (2), the holder of a registration shall include a statement (in this section referred to as a “regulatory disclosure statement”) in the prescribed form in all advertisements for its services stating that the holder of the registration is registered and supervised by the Bank for anti-money laundering and countering the financing of terrorism purposes only.
(2) For the purposes of this section, the Bank may prescribe the form of the regulatory disclosure statement including its size and colour and font type and the manner in which the disclosure statement shall be displayed.
(3) In this section, “advertisement” means any form of commercial communication which is intended to publicise or otherwise promote the holder of a registration in relation to the provision by the holder of virtual asset services.]
Annotations:
Amendments:
F164
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F165[
Offence to fail to comply with conditions or prescribed requirements
106M.— (1) The holder of a registration commits an offence if the holder fails to comply with—
(a) any condition of the registration, or
(b) any prescribed requirements.
(2) A person who commits an offence under this section is liable—
(a) on summary conviction, to a class C fine, or
(b) on conviction on indictment, to a fine not exceeding €100,000.
(3) The Bank may prescribe requirements for the purposes of subsection (1)(b) only if the Bank is satisfied that it is necessary to do so for the proper and orderly regulation of the business of virtual asset service providers and, in particular, for preventing such businesses from being used to carry out money laundering or terrorist financing.]
Annotations:
Amendments:
F165
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021. A class C fine means a fine not exceeding €2,500 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(1), S.I. No. 662 of 2010.
F166[
Holder of registration to ensure that beneficial owners are fit and proper persons
106N.— (1) The holder of a registration shall take reasonable steps to ascertain that any person who is a beneficial owner of the virtual asset service provider concerned is a fit and proper person.
(2) A person who contravenes subsection (1) commits an offence.
(3) A person who commits an offence under this section is liable—
(a) on summary conviction, to a class C fine, or
(b) on conviction on indictment, to a fine not exceeding €100,000.]
Annotations:
Amendments:
F166
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021. A class C fine means a fine not exceeding €2,500 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(1), S.I. No. 662 of 2010.
F167[
Revocation of registration by Bank on application of holder
106O.— The Bank shall revoke a registration on the application of the holder of the registration, but only if satisfied that the holder of the registration has fully complied with each of the following:
(a) any conditions of the registration;
(b) any prescribed requirements referred to in section 106M;
(c) section 106N;
(d) section 106Q;
(e) section 106Y,
and if satisfied that the persons in management positions have complied with their obligations to be fit and proper persons.]
Annotations:
Amendments:
F167
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F168[
Revocation of registration other than on application of holder
106P.— (1) The Bank may revoke a registration under this Chapter only if the Bank has reasonable grounds to be satisfied of any of the following:
(a) the holder of the registration has not commenced carrying on business as a virtual asset service provider within 12 months after the date on which the registration was granted;
(b) the holder of the registration has not carried on such a business within the immediately preceding 6 months;
(c) the registration was obtained by means of a false or misleading representation;
(d) any of the following persons is not a fit and proper person:
(i) the holder of the registration;
(ii) in a case where the holder of the registration is a body corporate, a partnership or an individual carrying on business as a virtual asset service provider, any principal officer of the body corporate or partnership (as the case may be);
(iii) any person who is a beneficial owner of the business concerned;
(e) the holder of the registration has contravened or is contravening the obligations imposed on virtual asset service providers, as designated persons, under this Part;
(f) the holder of the registration has failed to satisfy the Bank that its business risk assessment, policies and procedures are adequate or fit for purpose;
(g) the virtual asset service provider has contravened or is contravening any of the following:
(i) a condition of the registration;
(ii) a specified requirement referred to in section 106M;
(iii) section 106N;
(iv) section 106Q;
(v) section 106Y;
(h) the holder of the registration is so structured, or the business of the holder is so organised, that the holder is not capable of being regulated under this Chapter or as a designated person under this Part;
(i) in a case where the holder of the registration is a body corporate, the body corporate is being wound up;
(j) in a case where the holder of the registration is a partnership, the partnership is dissolved by the death or bankruptcy of a partner or because of the operation of a provision of the Partnership Act 1890 or otherwise;
(k) in a case where any person referred to in paragraph (d) has been registered to carry on business as a virtual asset service provider in another Member State, and an authority of the other Member State, that performs functions similar to those of the Bank under this Chapter, has terminated the permission of the person to carry on business as a virtual asset service provider in the other Member State;
(l) in a case where the holder of the registration is a subsidiary of a body corporate that has been registered to carry on business as a virtual asset service provider in another Member State, and an authority of the other Member State, that performs functions similar to those of the Bank under this Chapter, has terminated the permission of the body corporate to carry on business as a virtual asset service provider in the other Member State.
(2) If the Bank proposes to revoke a registration under this section, the Bank shall serve on the holder of the registration a notice in writing informing the holder of the Bank’s intention to revoke the registration.
(3) The notice shall—
(a) specify the grounds on which the Bank proposes to revoke the registration, and
(b) inform the holder that the holder may, within 21 days after service of the notice, make written representations to the Bank showing why the Bank should not revoke the registration.
(4) Not later than 21 days after a notice is served under subsection (2) on the holder of a registration, the holder may make written representations to the Bank showing why the Bank should not revoke the registration.
(5) The Bank may revoke the registration only after having considered any representations made by the holder of a registration in accordance with subsection (4).
(6) As soon as practicable after revoking a registration under this section, the Bank shall serve written notice of the revocation on the person who was the holder of a registration including a statement setting out the reasons for revoking the registration.
(7) A decision of the Bank to revoke a registration under this section is an appealable decision for the purposes of Part VIIA of the Act of 1942.
(8) The revocation of a registration under this section takes effect from the date of the notice of revocation or, if a later date is specified in the notice, from that date, whether or not an appeal against the revocation is made under this section.]
Annotations:
Amendments:
F168
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F169[
Direction not to carry out business other than as directed
106Q.— (1) If the Bank reasonably believes that there may be grounds for revoking a registration under section 106P, the Bank may serve on the holder of the registration a direction in writing prohibiting the holder from carrying on business as a virtual asset service provider other than in accordance with conditions specified by the Bank in the direction.
(2) The Bank shall include in a direction under this section a statement—
(a) setting out the reasons for giving the direction,
(b) specifying the period during which the direction is to remain in force, and
(c) specifying the conditions with which the holder of the registration is required to comply.
(3) A decision of the Bank to give a direction under subsection (1) is an appealable decision for the purposes of Part VIIA of the Act of 1942.
(4) The Bank may, by notice in writing served on the holder of the registration concerned, amend or revoke a direction given under this section.
(5) Without prejudice to the generality of subsection (3), the Bank may, by notice in writing given to the holder of the registration concerned, extend the period during which a direction remains in force by a further period or periods not exceeding 6 months.
(6) A direction under this section takes effect from the date on which it is given or, if a later date is specified in the direction, from that date, whether or not an appeal against the direction is made under this section.
(7) A direction under this section ceases to have effect—
(a) at the end of the period, not exceeding 6 months, specified in the direction, or if the period is extended under subsection (4), at the end of the extended period, or
(b) on the revocation of the holder’s registration under this Chapter,
whichever occurs first.
(8) A person who contravenes a direction given under this section, or fails to comply with a condition contained in the direction, commits an offence.
(9) A person who commits an offence under this section is liable—
(a) on summary conviction, to a class A fine, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or both.]
Annotations:
Amendments:
F169
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021. A class A fine means a fine not exceeding €5,000 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(1), S.I. No. 662 of 2010.
F170[
Bank to publish notice of revocation
106R.— As soon as is practicable after revoking a registration under section 106O or 106P, the Bank shall publish in Iris Oifigiúil a notice giving particulars of the revocation.]
Annotations:
Amendments:
F170
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F171[
Register of Virtual Asset Service Providers
106S.— (1) The Bank shall establish and maintain a register (to be known as “the Register of Virtual Asset Service Providers” and in this Act referred to as “the Register”) of persons registered under this Chapter to carry on business as a virtual asset service provider containing—
(a) the name and the address of the principal place of business of each person registered to carry on business as a virtual asset service provider,
(b) such other information as may be prescribed.
(2) The Register may be in book form, electronic form or such other form as the Bank may determine and may be maintained in an electronic, mechanical or other non-written form only if it is capable of being reproduced in a written form.
(3) The Bank shall publish a register in written, electronic or other form and a member of the public is entitled to obtain a copy of the Register or of an entry in the Register on payment of such reasonable copying charges as may be prescribed (if any) under section 32E of the Act of 1942 for the purposes of this section.
(4) The holder of a registration to which an entry in the Register relates, shall as soon as practicable after the holder becomes aware of any error in the entry, or any change in circumstances that is likely to have a bearing on the accuracy of the entry, give notice in writing to the Bank of the error, or change in circumstances, as the case may be.
(5) In any legal proceedings, a certificate purporting to be signed by the Bank and stating that a person—
(a) is recorded in the Register as the holder of a registration;
(b) is not recorded in the Register as the holder of a registration;
(c) was recorded in the Register as being, at a specified date or during a specified period, the holder of a registration; or
(d) was not recorded in the Register as being, at a specified date or during a specified period, the holder of a registration,
is evidence of the matter referred to in paragraph (a), (b), (c) or (d) (as the case may be), and is taken to have been signed by the person purporting to have signed it, unless the contrary is shown.
(6) The Bank may prescribe particulars for the purposes of subsection (1)(b) or section 106T only if satisfied that those particulars reasonably relate to the business of virtual asset service providers or to the regulation of the business of virtual asset service providers under this Chapter.]
Annotations:
Amendments:
F171
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F172[
Restriction on acquisition of beneficial interest in holders of registrations
106T.— (1) A proposed acquirer shall not, directly or indirectly, acquire a beneficial interest in the holder of a registration without the prior approval of the Bank in writing of the intended size of the interest.
(2) A notification under subsection (1) shall include sufficient information to enable the Bank to consider the proposed acquisition according to the nature of the proposed acquirer and the proposed acquisition, and in particular shall include information on who the proposed acquirers are, the persons to be responsible for their management (where applicable), how the proposed acquisition is to be financed and the structure of the resulting group.
(3) In assessing a proposed acquisition, the Bank shall—
(a) have regard to the likely influence of the proposed acquirer on the holder of the registration concerned, and
(b) appraise the suitability of the proposed acquirer and the financial soundness of the proposed acquisition concerned against all of the following criteria:
(i) the reputation of the proposed acquirer;
(ii) the reputation and experience of the individuals who will direct the business of the holder of the registration concerned as a result of the proposed acquisition;
(iii) the financial soundness of the proposed acquirer, in particular in relation to the type of business pursued and envisaged by the holder of the registration concerned;
(iv) whether there are reasonable grounds to suspect that, in connection with the proposed acquisition, money laundering or terrorist financing is being or has been committed or attempted, or that the proposed acquisition could increase the risk of money laundering or terrorist financing.
(4) If, on completing the assessment of a proposed acquisition, the Bank decides to oppose it, the Bank will inform the proposed acquirer concerned in writing and give reasons for that decision and the proposed acquirer shall not complete the proposed acquisition.
(5) If a proposed acquirer purports to complete a proposed acquisition in contravention of subsection (4)—
(a) the purported acquisition is of no effect to pass title to any share or any other interest, and
(b) any exercise of powers based on the purported acquisition of the interest concerned is void.
(6) A decision by the Bank to oppose a proposed acquisition is an appealable decision for the purposes of Part VIIA of the Act of 1942.
(7) In this section—
“proposed acquirer” means a person who proposes to acquire or increase a beneficial interest in the holder of a registration and includes a group of persons acting in concert to acquire such an interest;
“proposed acquisition” means the proposed acquisition of a beneficial interest in the holder of a registration.]
Annotations:
Amendments:
F172
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F173[
Powers of Bank in relation to beneficial owners
106U.— (1) Where the Bank has reason to believe that a person who is a beneficial owner of the business of the holder of a registration is exercising an influence on the direction of the affairs of the holder of the registration which is, or is likely to be, prejudicial to the compliance by the holder concerned with any obligations under this Act, the Bank shall, subject to subsection (2), notify the person that it so believes, and direct the person in writing to take specified measures to bring that influence to an end within a specified period.
(2) Before issuing a direction to a person under subsection (1), the Bank shall notify the person of its intention to issue the direction and shall give the person an opportunity to make such representations on the matter as he or she may wish to make within a period specified by the Bank in the notification.
(3) A direction issued under subsection (1) is an appealable decision for the purposes of Part VIIA of the Act of 1942.
(4) Where the Bank is of the opinion that a direction under subsection (1) has not been complied with by the person concerned, or has not been complied with within the specified period of time, the Bank may, without prejudice to any of its other functions, apply to the Court in a summary manner for any one or more of the following:
(a) an injunction prohibiting the person concerned from issuing directions to directors or to any manager, secretary, officer or staff of, or persons engaged by, the holder of the registration concerned and prohibiting any director, manager, secretary, officer or any other person acting on behalf of the holder of the registration from seeking directions from, or consulting, the person concerned, or from acting on such directions without the consent of the Bank;
(b) an order suspending the exercise by the person concerned of any interest in or voting rights attaching to shares held by that person in the holder of the registration concerned;
(c) an order requiring the person concerned to dispose of some or all of his shareholding, interests or rights in the holder of the registration concerned within a period specified by the Court;
(d) such other order as the Court considers appropriate.
(5) Where the Court is satisfied, because of the nature or the circumstances of the case or otherwise in the interests of justice that it is desirable, the whole or any part of proceedings before it may be heard otherwise than in public.
(6) In this section “Court” means the High Court.]
Annotations:
Amendments:
F173
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F174[
Obligation on holder of registration to report certain suspicions to Bank
106V.— If at any time the holder of a registration suspects on reasonable grounds that any person who is a beneficial owner of the holder of the registration is not a fit and proper person, it shall notify the suspicion in writing to the Bank together with particulars setting out the basis for the suspicion.]
Annotations:
Amendments:
F174
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F175[
Provision of information by Garda Síochána as to whether or not person is fit and proper person
106W.— (1) The Bank may request the Commissioner of the Garda Síochána to provide any information that is required to assist the Bank in determining, for the purposes of this Chapter, whether or not any of the following persons is a fit and proper person:
(a) the holder or proposed holder of a registration;
(b) in a case where the holder or proposed holder of a registration is a body corporate, a partnership or an individual carrying on, or proposing to carry on, business as a virtual asset service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be);
(c) any person who is a beneficial owner of the business of the holder or proposed holder of the registration concerned.
(2) Notwithstanding any other enactment or rule of law, the Commissioner of the Garda Síochána shall provide the Bank with information in accordance with a request of the Bank under this section.]
Annotations:
Amendments:
F175
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F176[
Bank’s power to make regulations
106X.— (1) The Bank may by regulations provide for any matter referred to in this Chapter as prescribed or to be prescribed.
(2) Without prejudice to any provision of this Chapter, regulations under this Chapter may contain such incidental, supplementary and consequential provisions as appear to the Bank to be necessary or expedient for the purposes of the regulations.
(3) Every regulation made by the Bank under this Chapter shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.]
Annotations:
Amendments:
F176
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021.
F177[
Holders of registrations to retain certain records
106Y.— (1) The holder of a registration shall—
(a) retain at an office or other premises in the State such records as may be specified by the Bank, and
(b) notify the Bank in writing of the address of any office or other premises where those records are retained.
(2) The requirement imposed by subsection (1) is in addition to, and not in substitution for, any other requirements imposed under any other enactment or rule of law with respect to the retention of records by the holder of a registration, including the requirements specified in section 55.
(3) The holder of a registration shall retain the records referred to in subsection (1) for a period of not less than 6 years after—
(a) in the case of a record made in relation to a customer of the virtual asset service provider, the last dealing with the customer, or
(b) in any other case, the record is made.
(4) The holder of a registration may keep the records referred to in subsection (1) wholly or partly in an electronic, mechanical or other non-written form only if they are capable of being reproduced in a written form.
(5) The obligations that are imposed on the holder of a registration under this section, continue to apply to a person who has been the holder of a registration, but has ceased to hold a registration or to carry on business as a virtual asset service provider.
(6) A requirement that the holder of a registration that is a body corporate, retain any record under this section, applies to any body corporate that is a successor to, or a continuation of, the body corporate.
(7) The Bank may prescribe requirements relating to the retention of records referred to in this section of a body corporate that is wound up or a partnership that is dissolved.
(8) A person who fails to comply with this section commits an offence and is liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or both.]
Annotations:
Amendments:
F177
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 25, S.I. No. 188 of 2021. A class A fine means a fine not exceeding €5,000 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(1), S.I. No. 662 of 2010.
Chapter 9B
Designation of Classes of Express Trust (and Matters Related to Such Trusts) for Certain Purposes
Purpose of Chapter
106Z.— (1) The purpose of this Chapter is to make provision for the meaning that certain words or expressions shall have in regulations that are made, on or after the commencement of section 26 of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021, under section 3 of the European Communities Act 1972 , for the purpose of giving effect to Article 31 of the Fourth Money Laundering Directive.
(2) Nothing in this Chapter applies to the construction of a word or expression used in another Chapter of this Part.]
Annotations:
Amendments:
F178
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 26, S.I. No. 188 of 2021.
F179[
Operation and interpretation (Chapter 9B)
106ZA.— (1) Where the relevant regulations specify that, with respect to a particular word or expression, the designated meaning in the Act of 2010 shall apply then the meaning as hereafter provided in this Chapter shall apply with respect to that word or expression.
(2) A reference in this Chapter to a definition being ‘designated’ with respect to a particular word or expression is a reference to the definition (with respect to the particular word or expression) being designated for the purposes of the relevant regulations.
(3) In this Chapter—
“Act of 1997” means the Taxes Consolidation Act 1997;
“relevant regulations” means the regulations referred to in section 106Z(1).
(4) In this Chapter, a reference to the Fourth Money Laundering Directive is a reference to that Directive as amended by the Fifth Money Laundering Directive.]
Annotations:
Amendments:
F179
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 26, S.I. No. 188 of 2021.
F180[Power to prescribe certain matters
106ZB.— The Minister for Finance may by regulations provide for any matter referred to in this Chapter as prescribed or to be prescribed.]
Annotations:
Amendments:
F180
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 26, S.I. No. 188 of 2021.
F181[
Relevant trust – designated meaning
106ZC.— (1) The following definition is designated with respect to “relevant trust”:
“relevant trust” means an express trust established by deed or other declaration in writing and any other arrangement or class of arrangements as may be prescribed but does not include an excluded arrangement.
(2) For the purposes of the definition, designated by subsection (1), with respect to “relevant trust”, “excluded arrangement” means an arrangement of the following kind:
(a) an occupational pension scheme that is an approved scheme pursuant to Chapter 1 of Part 30 of the Act of 1997;
(b) an approved retirement fund within the meaning of Chapter 2 of Part 30 of the Act of 1997;
(c) a profit sharing scheme or employee share ownership trust approved pursuant to Part 17 of the Act of 1997;
(d) a trust for restricted shares within the meaning of section 128D of the Act of 1997;
(e) the Haemophilia HIV Trust which was established by deed dated the 22nd day of November 1989, made between the Minister for Health, of the one part and certain other persons, of the other part;
(f) a unit trust within the meaning of the European Union (Modifications of Statutory Instrument No. 110 of 2019) (Registration of Beneficial Ownership of Certain Financial Vehicles) Regulations 2020 ( S.I. No. 233 of 2020 ), the beneficial ownership of which, by virtue of the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 ( S.I. No. 110 of 2019 ), is required to be registered in the Central Register of Beneficial Ownership of Irish Collective Asset-management Vehicles, Credit Unions and Unit Trusts;
(g) such other arrangement or class of arrangements as may be prescribed.
(3) For the purpose of ensuring the uniform application of European Union law between Member States, the Minister for Finance may prescribe any arrangement or class of arrangements to be an excluded arrangement for the purpose of subsection (2)(g), where he or she is satisfied that such arrangement or class of arrangements is not an express trust or similar legal arrangement within the meaning of the Fourth Money Laundering Directive, taking into consideration such information as is available to him or her on the following matters—
(a) the low risk of money laundering or terrorist financing presented by such arrangement or class of arrangements having regard, in particular, to:
(i) the legal structure of such arrangement or class of arrangements;
(ii) any supervision or regulation of such arrangement or class of arrangements under any enactment, and
(b) the non-application of Article 31 of the Fourth Money Laundering Directive to arrangements in other Member States having comparable purposes and structures to such arrangement or class of arrangements.
(4) For the purpose of ensuring the uniform application of European Union law between Member States, the Minister for Finance may prescribe any arrangement or class of arrangements to be a relevant trust for the purpose of the definition, designated by subsection (1), with respect to “relevant trust” where he or she is satisfied that such arrangement or class of arrangements is an express trust or a similar legal arrangement within the meaning of the Fourth Money Laundering Directive, taking into consideration such information as is available to him or her on the following matters—
(a) the risk of money laundering or terrorist financing presented by such arrangement or class of arrangements having regard, in particular, to:
(i) the legal structure of such arrangement or class of arrangements;
(ii) the absence of, or any limitations in, the supervision or regulation of such arrangement or class of arrangements under any enactment,
and
(b) the application of Article 31 of the Fourth Money Laundering Directive to arrangements in other Member States having comparable purposes and structures to such arrangement or class of arrangements.]
Annotations:
Amendments:
F181
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 26, S.I. No. 188 of 2021.
F182[
Beneficial owner in relation to relevant trusts – designated meaning
106ZD.— (1) Subject to subsections (5) to (7), the following definition is designated with respect to “beneficial owner” (in relation to a relevant trust):
“beneficial owner”, in relation to a relevant trust, means any of the following:
(a) any individual who is entitled to a vested interest in possession, remainder or reversion, whether or not the interest is defeasible, in the capital of the relevant trust property;
(b) in the case of a relevant trust other than one that is set up or operates entirely for the benefit of individuals referred to in paragraph (a), the class of individuals in whose interest the trust is set up or operates;
(c) any individual who has control over the relevant trust;
(d) the settlor;
(e) the trustee;
(f) the protector.
(2) For the purposes of the definition, designated by subsection (1), with respect to “beneficial owner” (in relation to a relevant trust), subsections (3) to (7) shall apply; the relevant regulations may, for convenience of reference, set out any of the provisions of this section (whether those that precede or follow this subsection) notwithstanding the application (provided for by section 106ZA(1)) of those provisions to those regulations.
(3) Except as provided by subsection (5), in this section “control”, in relation to a relevant trust, means a power (whether exercisable alone, jointly with another person or with the consent of another person) under the trust instrument concerned or by law to do any of the following:
(a) dispose of, advance, lend, invest, pay or apply the trust property;
(b) vary the relevant trust;
(c) add or remove a person as a beneficiary or to or from a class of beneficiaries;
(d) appoint or remove trustees;
(e) direct, withhold consent to or veto the exercise of any power referred to in paragraphs (a) to (d).
(4) For the purposes of the definition of “control” in subsection (3), an individual does not have control solely as a result of the power exercisable collectively at common law to vary or extinguish a trust where the beneficiaries under the trust are at least 18 years of age, have full capacity and (taken together) are absolutely entitled to the property to which the trust applies.
(5) Notwithstanding subsection (1), “beneficial owner”, in relation to a relevant trust established for the purpose of holding any assets of an approved body of persons established for, and existing for, the sole purpose of promoting amateur games or amateur sports within the meaning of section 235 of the Act of 1997, means the trustees, the committee or other governing body of the club or association, and any other individual who has control over the relevant trust.
(6) Notwithstanding subsection (1), “beneficial owner”, in relation to a relevant trust that is a charitable trust within the meaning of section 2 of the Charities Act 2009, means the trustees and the committee or other governing body of the charitable trust, and any other individual who has control over the charitable trust.
(7) Notwithstanding subsection (1), ‘beneficial owner’, in relation to an estate—
(a) of a deceased person in the course of administration, and
(b) in relation to which there is provision for a relevant trust for one or more beneficiaries,
means the executor or administrator of the estate, and no other person, for the period in which the estate is being administered.]
Annotations:
Amendments:
F182
Inserted (23.04.2021) by Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 (3/2021), s. 26, S.I. No. 188 of 2021.
S.I. No. 167/2013 –
Trust or Company Service Provider Authorisation (Appeal Tribunal) (Establishment) Order 2013.
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 21st May, 2013.
I, ALAN SHATTER, Minister for Justice and Equality, in exercise of the powers conferred on me by section 101 (1) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6 of 2010) (as adapted by the Justice and Law Reform (Alteration of Name of Department and Title of Minister) Order 2011( S.I. No. 138 of 2011 )), hereby order as follows:
1. This Order may be cited as the Trust or Company Service Provider Authorisation (Appeal Tribunal) (Establishment) Order 2013.
2. In this Order, “Act of 2010” means the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No.6 of 2010).
3. An Appeal Tribunal is hereby established pursuant to section 101(1) of the Act of 2010 for the period commencing on 22 day of May 2013 and ending on 21 day of May 2018 to adjudicate on appeals under section 100 of that Act.
/images/ls
GIVEN under my Official Seal,
16 May 2013.
ALAN SHATTER T.D.,
Minister for Justice and Equality.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
This Order gives further effect in Irish law to * Directive 2005/60/EC of the European Parliament and the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing by establishing an Appeal Tribunal under section 101 (1) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 .
*O.J. No. L 309/15, 25.11.2005
*O.J. No. L 309/15, 25.11.2005
S.I. No. 475/2018 –
Trust or Company Service Provider Authorisation (Appeal Tribunal) (Establishment) (No. 2) Order 2018
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 20th November, 2018.
I, CHARLES FLANAGAN, Minister for Justice and Equality, in exercise of the powers conferred on me by section 101 (1) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6 of 2010) (as adapted by the Justice and Law Reform (Alteration of Name of Department and Title of Minister) Order 2011 ( S.I. No. 138 of 2011 )), hereby order as follows:
1. This Order may be cited as the Trust or Company Service Provider Authorisation (Appeal Tribunal) (Establishment) (No. 2) Order 2018.
2. An Appeal Tribunal is hereby established pursuant to section 101 (1) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6 of 2010) for the period commencing on 19 day of November 2018 and ending on 18 day of November 2023 to adjudicate on appeals under section 100 of that Act.
/images/ls
GIVEN under my Official Seal,
16 November 2018.
CHARLES FLANAGAN,
Minister for Justice and Equality.
EXPLANATORY MEMORANDUM
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
This Order establishes a Trust or Company Service Provider Authorisation Appeal Tribunal under Section 101 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6 of 2010). The Appeal Tribunal considers appeals of decisions made by the Minister in relation to applications for, and renewals of, authorisation of Trust or Company Service Providers, as well as appeals to Directions issued under section 98 of the 2010 Act.
S.I. No. 474/2018 –
Trust or Company Service Provider Authorisation (Appeal Tribunal) (Establishment) Order 2018
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 20th November, 2018.
I, CHARLES FLANAGAN, Minister for Justice and Equality, in exercise of the powers conferred on me by section 101 (1) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6 of 2010) (as adapted by the Justice and Law Reform (Alteration of Name of Department and Title of Minister) Order 2011 ( S.I. No. 138 of 2011 )), hereby order as follows:
1. This Order may be cited as the Trust or Company Service Provider Authorisation (Appeal Tribunal) (Establishment) Order 2018.
2. An Appeal Tribunal is hereby established pursuant to section 101 (1) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6 of 2010) for the period commencing on 19 day of November 2018 and ending on 18 day of November 2023 to adjudicate on appeals under section 100 of that Act.
/images/ls
GIVEN under my Official Seal,
16 November 2018.
CHARLES FLANAGAN,
Minister for Justice and Equality.
EXPLANATORY MEMORANDUM
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
This Order establishes a Trust or Company Service Provider Authorisation Appeal Tribunal under Section 101 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6 of 2010). The Appeal Tribunal considers appeals of decisions made by the Minister in relation to applications for, and renewals of, authorisation of Trust or Company Service Providers, as well as appeals to Directions issued under section 98 of the 2010 Act.