Markets in Financial Instruments and Miscellaneous Provisions Act 2007

19.

Amendment of Central Bank Act 1997.

19.— The Central Bank Act 1997 is amended—

( a) in section 28, by adding the following definitions:

“‘credit’ means a cash loan (whether or not provided on the security of a mortgage or charge over an estate or interest in land), but does not include credit of a class specified in section 3(2) of the Consumer Credit Act 1995;

‘home reversion agreement’ means an agreement between a vendor and a home reversion firm that provides—

( a) for the conveyance by the vendor to the home reversion firm of an estate or interest in land (which includes the principal residence of the vendor or of the vendor’s dependants) for a discounted sum or an income (or both), and

( b) for the vendor to retain the right to live in the residence until the occurrence of one or more events specified in the agreement;

‘home reversion firm’ means a person carrying on a business of entering into home reversion agreements;”;

( b) in section 28, by substituting the following definition for the definition of “regulated business”:

“‘regulated business’ means a bureau de change business, a money transmission business, a home reversion firm or a retail credit firm;”;

( c) in section 28, by inserting the following definitions after the definition of “regulated business” (as substituted by paragraph ( b)):

“‘regulated financial service provider’ has the same meaning as in section 2 of the Central Bank Act 1942;

‘relevant person’ means a natural person within the State, other than—

( a) a natural person who is, or satisfies the criteria to elect to be treated as, a professional client for the purposes of the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60 of 2007), or

( b) a person who is a regulated financial service provider;

‘retail credit firm’ means a person prescribed for the purpose of paragraph ( g) of the definition of ‘credit institution’ in section 3 of the Consumer Credit Act 1995, or any other person who holds itself out as carrying on a business of, and whose business consists wholly or partly of, providing credit directly to relevant persons, but does not include—

( a) a person who is a regulated financial service provider, or

( b) a person who is an authorised credit intermediary under Part XI of the Consumer Credit Act 1995, or

( c) in relation to credit that was originally provided by another person, a person to whom all or any part of that other person’s interest in the credit is directly or indirectly assigned or otherwise disposed of, or

( d) a person who provides credit on a once only or occasional basis, but only if the provision of the credit does not involve a representation, or create an impression (whether in advertising, marketing or otherwise), that the credit would be offered to other persons on the same or substantially similar terms, or

( e) a person who is exempted, or who belongs to a class of persons that is exempted, under section 29A from being required to hold an authorisation as a retail credit firm;”;

( d) immediately before section 29, by substituting for the Chapter heading the following:

“Chapter 2

Carrying on regulated business without authorisation prohibited”;

( e) in Chapter 2, by inserting the following section after section 29:

“Power of Bank to exempt certain persons from being required to hold authorisation as a retail credit firm.

29A.— (1) The Bank may exempt a person from being required to hold an authorisation as a retail credit firm in relation to the provision of credit if, in the opinion of the Bank—

( a) the total amount or value of the credit that is to be provided by the person is such that it is reasonable to assume that the borrower will be in a position to negotiate on equal terms or to obtain appropriate legal and financial advice, or

( b) the person is one who, under section 8(2) of the Central Bank Act 1971, is exempted, or is a member of a class of persons that is exempted, from being required to hold a banking licence, or

( c) the person is one who provides credit solely for charitable or public purposes and at a rate of interest or on other terms more favourable than those that are currently available commercially,

and the exemption would not be inconsistent with the proper and orderly regulation of the provision of credit and the protection of customers of retail credit firms.

(2) The Bank may also exempt the persons belonging to a specified class of persons from being required to hold an authorisation as a retail credit firm in relation to the provision of credit if, in the opinion of the Bank—

( a) the total amount or value of the credit that is to be provided by those persons is such that it is reasonable to assume that borrowers from those persons will be in a position to negotiate on equal terms or to obtain appropriate legal and financial advice, or

( b) the persons are ones who, under section 8(2) of the Central Bank Act 1971, are exempted, or belong to a class of persons that is exempted, from being required to hold a banking licence, or

( c) the persons are ones who provide credit solely for charitable or public purposes and at a rate of interest or on other terms more favourable than those that are currently available commercially,

and the exemption would not be inconsistent with the proper and orderly regulation of the provision of credit and the protection of customers of retail credit firms.

(3) The power to exempt a person, or the persons belonging to a specified class, from being required to hold an authorisation as a retail credit firm may be exercised by the Bank either on its own initiative or on an application made by or on behalf of the person, or the persons or any of the persons belonging to that class.

(4) An exemption granted under this section is subject to such conditions as the Bank thinks fit to impose.

(5) The Bank may at any time by notice in writing—

( a) impose additional conditions on a person to whom, or on the persons belonging to a class in respect of which, an exemption has been granted under this section, or

( b) vary or revoke a condition imposed under subsection (4) or this subsection.

(6) The Bank shall revoke an exemption granted under this section if it is satisfied—

( a) that the circumstances relevant to the exemption have changed and are now such that the exemption would no longer be granted, or

( b) that a condition of the exemption is not being, or has not been, substantially complied with.

(7) The Bank shall publish in Iris Oifigi úil a notice of every exemption granted, and every revocation made, under this section.

(8) Failure to comply with subsection (7) does not affect the validity of an exemption granted, or a revocation made, under this section.

(9) Section 29(1) does not apply to a person who, or a person belonging to a class of persons that, is exempted under this section so long as the person—

( a) does not carry on any kind of regulated business other than that to which the exemption relates, and

( b) complies with all conditions subject to which the exemption is granted.”;

( f) by inserting the following section after section 31:

“Provisions supplementary to section 31 applicable to retail credit and home reversion firms.

31A.— For the purposes of section 31(2)( b), in order to obtain and retain authorisation, a retail credit firm or home reversion firm shall satisfy the Bank—

( a) that, where applicable, the memorandum and articles of association of the firm will enable it to operate in accordance with this Act, and any condition or requirement that the Bank may impose,

( b) as to the probity and competence of each of the firm’s directors and managers,

( c) as to the suitability of each of the firm’s qualifying shareholders or partners,

( d) as to the organisational structure and management skills of the firm and that adequate levels of staff and expertise will be employed to carry out its activities,

( e) that the firm has and will follow procedures that will enable the Bank to be supplied with all information necessary for the performance of the Bank’s supervisory functions and to enable the public to be supplied with information that the Bank specifies,

( f) that the organisation of the firm’s business structure is such that it, and any of its associated or related undertakings, (so far as appropriate and practicable) are capable of being supervised adequately by the Bank, and

( g) as to the conduct of the firm’s business, financial resources and any other matters that the Bank considers necessary in the interests of the proper and orderly regulation and supervision of authorised firms or in the interests of the protection of customers or potential customers.”;

( g) by inserting the following section after section 32:

“Additional provisions applicable to retail credit and home reversion firms.

32A.— (1) An authorisation granted by the Bank under section 31 to a retail credit or home reversion firm may specify classes of services, and additional services, that the firm may provide.

(2) An authorisation granted by the Bank under section 31 of this Act to a retail credit firm may include an authorisation to act as a home reversion firm.

(3) The Bank may amend—

( a) the classes of retail credit services or other services that may be provided in accordance with subsections (1) or (2), or

( b) the designation or classification of firms or services.

(4) For the purposes of subsections (1) to (3), the Bank may use such designation or classification of firms or services as the Bank considers appropriate to describe the services provided.

(5) At any time before granting or refusing an authorisation to a firm, the Bank may—

( a) request such further information from the firm, or

( b) instruct an authorised officer to make such inquiries, or carry out such investigations,

as it considers necessary for the purpose of properly evaluating an application. Any such inquiries or investigations shall be carried out in accordance with this Act.

(6) In the case of a retail credit or home reversion firm authorised in another EEA Country, the Bank—

( a) shall have regard to any requirements imposed on the firm by an authority of that country that appears to the Bank to exercise a regulatory or supervisory role similar to that of the Bank in relation to the firm, and

( b) may exchange with that authority information relevant to the carrying out of the Bank’s functions under this Act or the functions of that authority under the laws of that country.”;

( h) by inserting the following section after section 33:

“Imposition of conditions or requirements on authorised retail credit firms and home reversion firms.

33A.— (1) Without limiting section 33, the Bank may do all or any of the following in respect of an authorised retail credit firm or an authorised home reversion firm:

( a) make the firm’s authorisation subject to such conditions or requirements, or both, as it considers appropriate, relating to—

(i) the proper and orderly regulation and supervision of retail credit firms or authorised home reversion firms, and

(ii) the protection of their customers or potential customers;

( b) impose conditions or requirements, or both, relating to the affairs or activities in an associated undertaking or a related undertaking;

( c) require the display on a credit agreement or home reversion agreement, or on any other relevant document, of a notice in a form provided or prescribed by the Bank of any information relevant to the agreement;

( d) at any time, impose conditions or requirements, or both, on an authorised firm and either amend or revoke any condition or requirement imposed under this paragraph or under paragraph ( a), ( b) or ( c).

(2) A condition or requirement referred to in subsection (1) may be imposed in relation to any or all of the following:

( a) an authorised firm;

( b) all authorised firms;

( c) a class or classes of authorised firms;

( d) a specified period of time or times;

( e) an associated undertaking or related undertaking;

( f) such matters relating to the proper and orderly regulation and supervision of authorised firms, and the protection of their customers or potential customers, as the Bank considers appropriate.

(3) Without limiting subsections (1) and (2), the Bank may impose conditions or requirements on an authorised firm, or a class of authorised firms concerning—

( a) the level of training, qualifications or professional competence of managers, officers or employees,

( b) the provision of information to the Bank or to a person specified by the Bank, and

( c) the application of a prescribed code of practice relating to—

(i) regulated financial service providers within the meaning of the Central Bank Act 1942, or

(ii) a class of regulated financial service providers whose business appears to be comparable to that of an authorised firm or a class of authorised firms.”;

( i) by inserting the following section after section 34B:

“Transitional provisions.

34C.— (1) Despite section 29, a person carrying on the business of a retail credit firm, or a home reversion firm, immediately before the commencement of Part 2 of the Markets in Financial Instruments and Mis cellaneous Provisions Act 2007 is taken to be authorised as a regulated business until the Bank has granted or refused authorisation to the person, provided the person applies to the Bank under section 30 for authorisation no later than 3 months after that commencement.

(2) If a person is taken to be authorised as a regulated business 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 a regulated business;

( b) direct that person not to carry on the business of a retail credit firm, or the business of a home reversion firm, 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 Central Bank Act 1942.”.