Credit Institutions (Stabilisation) Act 2010

SCHEDULE 1

Amendments of Acts

PART 1

Amendments of Building Societies Act 1989

Item

Provision Amended

Amendment

1

Section 50

Insert after subsection (5):

“(5A) No person may be nominated for election as a director of a society that has issued special investment shares without the prior written consent of the holder of those shares.”.

2

Section 100, definition of “company”

Substitute:

“‘company’ means a company limited by shares (within the meaning of the Companies Acts);”.

3

Section 101(3)( a)

Substitute:

“( a) state the name of the proposed company and whether it will be a public limited company limited by shares or a private company limited by shares,”.

4

Section 101(3)( k)

Substitute:

“( k) specify the terms of any proposed distribution of the funds of the society in connection with the conversion scheme,

( ka) in the case of a building society that has issued special investment shares, be posted on the society’s website if it is proposed that the holder of such shares would pass the conversion resolution by written resolution, and”.

5

Section 101(5)

Substitute:

“(5) A conversion scheme under this section shall not be sent to the members of the society (or, where applicable, published on the website of the society) unless the scheme has been approved by the Central Bank as meeting the requirements of or under this Part.”.

6

Section 101(6)

After “by virtue of holding shares”, insert “(other than special investment shares)”.

7

Section 101(8)

After “building society”, insert “that has issued special investment shares, and a building society”.

8

Section 101C(8)( a)

After “by virtue of holding shares”, insert “(other than special investment shares)”.

9

Section 103(1)

Delete “Before”, substitute “Subject to subsection (1A), before”.

10

Section 103

After subsection (1), insert:

“(1A) Subsection (1) does not apply to a building society that has issued special investment shares where it is proposed that the holder of those shares would pass the conversion resolution by written resolution.”.

11

Section 105(1)

Delete “A petition”, substitute “Subject to subsection (1A), a petition”.

12

Section 105

After subsection (1), insert:

“(1A) Subsection (1) does not apply to a building society that has issued special investment shares where it is proposed that the holder of those shares would pass the conversion resolution by written resolution.”.

13

Section 106(1)

After “as soon as may be but”, insert “(except in the case of a building society that has passed the relevant conversion resolution as a written resolution)”.

14

Paragraphs ( a) to ( c) of section 107(1)

Substitute:

“( a) every shareholding (except any holding of special investment shares) in and deposit with the society becomes, on conversion, a deposit of the same amount with the successor company,

( b) on the conversion date, the business, property, rights and liabilities of the society vest in the successor company, and

( c) except where the consent of the holder of special investment shares has been obtained, or the terms of the special investment shares provide otherwise, the special investment shares or investment shares issued by the society become, on conversion, ordinary shares in the successor company.”.

15

Section 107

After subsection (1), insert:

“(1A) Any ordinary shares in the successor company referred to in subsection (1)( c) shall be taken to have been fully paid up.”.

PART 2

Amendment of Central Bank Act 1942

Item

Provision Amended

Amendment

1

Paragraphs numbered ( am) in section 33AK(5)

Substitute:

“( am) to a deposit guarantee scheme established in accordance with Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 2, or

( an) to a body or authority that is a competent authority for the purposes of a Regulation of the European Union or European Communities, or a law of the State implementing such a Regulation, that imposes restrictive measures within the framework of the EU Common Foreign and Security Policy, or

( ao) for any purpose connected with the functions of the Bank, the Minister, the Governor or the Head of Financial Regulation or a special manager under the Credit Institutions (Stabilisation) Act 2010.”.

2 O.J. No. L135, 31.5.1994, p.5.

PART 3

Amendments of Central Bank Act 1971

Item

Provision Amended

Amendment

1

Section 33(1)

After “the business to which the licence relates” insert “and all or any of the other assets and liabilities of the transferor”.

2

Section 33(1)( c)

After “order”, insert “(in this section called a “transfer order”)”.

3

Paragraphs ( d) and ( e) of section 33(1)

Substitute:

“( d) if the Minister approves of the scheme—

(i) the assets and liabilities of the transferor described in the scheme shall be transferred under the transfer order, and

(ii) if the scheme so provides, sections 34 to 39 and 42 have effect in relation to the transfer, but only to the extent that the scheme so provides,

( e) the Minister, if the transferor and transferee so request—

(i) may include in the transfer order such incidental, consequential and supplemental provisions as he or she thinks appropriate for facilitating and implementing the transfer and securing that it is fully and effectively carried out, including provisions for substituting the name of the transferee for the transferor or otherwise adapting references to the transferor in any instrument, and

(ii) may provide in the transfer order for such transitional matters, including the sharing of assets and other contracts, as the Minister considers appropriate,

and

( f) a transfer order takes effect notwithstanding:

(i) any duty or obligation to any person;

(ii) any provision of any enactment, rule of law, code of practice or agreement providing or requiring

(I) notice to any person, or

(II) the consent, approval or concurrence of any person. ”.

4

Section 33

After subsection (3), insert:

“(4) Where the Minister approves of a scheme under subsection (1)( c) involving a transfer which, in the Minister’s opinion, is intended to preserve or restore the financial position of the transferor or transferee, but which could affect the rights of third parties existing before the transfer—

( a) the relevant order under subsection (1) shall be expressed as having been made with the intention of preserving or restoring the financial position of the transferor or transferee (with the possibility of affecting third parties’ pre-existing rights) and being intended to have effect outside as well as inside the State,

( b) sections 33A and 33B have effect in relation to the transfer, and

( c) the Minister may dispense with the requirement in subsection (1)( b) to publish prior notice of the transfer, and may substitute for that requirement a requirement to publish a contemporaneous or retrospective notice in such places as the Minister may direct.”.

5

After section 33, insert:

“Effect of order under section 33(1) on certain other rights.

33A. —(1) This section and section 33B apply only where an order under section 33(1) provides that they shall have effect.

(2) In this section ‘relevant agreement’ means an agreement, arrangement, undertaking, scheme, licence, security, obligation or other instrument, or an oral contract, that a transferor or transferee (or any of the transferor or transferee’s subsidiaries, holding companies and any subsidiaries of their holding companies (with the respective meanings given by section 155 of the Companies Act 1963)) is a party to, is bound by or has an interest in (regardless of whether governed by the law of the State or that of any other place).

(3) Any provision in a relevant agreement that would (apart from this subsection) cause any of the consequences specified in subsection (4) to follow by virtue of

( a) the amendment of this Act by the Credit Institutions (Stabilisation) Act 2010,

( b) the publication of the Bill for that Act,

( c) the making of an order under section 33(1) or any step taken in preparation for the making of such an order,

( d) an act done or omitted to be done in compliance with such an order,

( e) any consequences of such an act or omission,

( f) any consequence of a transfer expressed as set out in section 33(4),

( g) any other thing done or authorised to be done under, under or resulting from any provision of this Act,

is of no effect, and

(i) no interest or right of any third party arises or becomes exercisable, and

(ii) no liability or obligation arises or is incurred by any third party,

without the express consent of the Minister, except to any extent to which the Minister provides otherwise by order under section 33B.

(4) The consequences referred to in subsection (3) are the following:

( a) the creation of an obligation or liability;

( b) the suspension or extinction (however described, and whether in whole or in part) of a right or an obligation or the becoming subject to a right or an obligation;

( c) the termination or extinguishment of the relevant agreement concerned or a right or obligation under it;

( d) a right becoming exercisable to terminate or modify the relevant agreement or a right or obligation under it;

( e) an amount becoming due and payable or capable of being declared due and payable or ceasing to be payable;

( f) any other change in the amount or timing of any payment falling to be made or due to be received by any person;

( g) a right becoming exercisable to withhold, net or set off any payment under or in connection with the relevant agreement;

( h) the occurrence of an event giving rise to a default or breach of a right or obligation;

( i) a right becoming exercisable not to advance any amount;

( j) an obligation arising to provide or transfer a deposit or collateral;

( k) a right of transfer or assignment of an asset or liability;

( l) any right to enforce a guarantee, indemnity or security interest (however described);

( m) the triggering of any mandatory prepayment event (howsoever described);

( n) any obligation to return collateral or its equivalent;

( o) the cancellation of any obligation to advance any amount or to provide credit or a contingent instrument;

( p) legal proceedings becoming maintainable to enforce the relevant agreement;

( q) the termination or modification of an obligation to provide a service or product;

( r) the accrual of any right to give or withhold any consent or approval;

( s) any event of default or breach of any right arising;

( t) any right or obligation not arising;

( u) the imposition of any condition on the relevant agreement;

( v) the imposition of any condition on any right or obligation under the relevant agreement;

( w) the creation of any constructive or resulting trust or other equitable interest or equity;

( x) the accrual of any right to trace any property or to claim an equitable interest in or equity in respect of any property or to claim any breach of trust;

( y) any other right or remedy (whether or not similar in kind to those referred to in paragraphs ( a) to ( x)) arising or becoming exercisable.

Minister ’s power to modify application of section 33A.

33B. —(1) In this section ‘relevant agreement’ has the same meaning as in section 33A.

(2) If the Minister is of the opinion that in a particular case or cases the effect of section 33A is in all the circumstances unduly onerous, or causes unfairness or undue hardship, and that it is appropriate in all the circumstances to do so, he or she may by order provide that, notwithstanding anything in that section, a provision in a relevant agreement that provides for a consequence mentioned or referred to in section 33A(4) has effect to the extent specified in the order.

(3) An order under subsection (2)

( a) may make provision in relation to the effect of a provision in—

(i) a particular relevant agreement,

(ii) relevant agreements of a particular kind, or

(iii) rights held under a relevant agreement, or relevant agreements of a particular kind, by a particular person or a particular class of persons,

( b) in the case of an order that makes provision in relation to relevant agreements of a particular kind, may specify the kind by reference to any common characteristic of the instruments concerned,

( c) in the case of an order that makes provision in relation to rights held by a particular class of persons, may specify the class by reference to any common characteristic of the persons concerned, and

( d) may be expressed to have retrospective effect to a date falling after 13 December 2010.

(4) If the Minister considers that an order under subsection (2) contains matter that is commercially sensitive, he or she may direct

( a) that the obligations in relation to the order under section 3(1) of the Statutory Instruments Act 1947 are to be taken to be satisfied by the printing, sending to the institutions mentioned in section 3(1)( a) of that Act, publication and sale of a version of the order from which the commercially sensitive matter is omitted, or

( b) if the preparation of such a version would be impracticable, or would result in the version being seriously misleading, that the order is exempt from the operation of section 3(1) of that Act.

(5) A version of an order prepared in accordance with a direction given by the Minister under subsection (4)( a) shall indicate that matter has been omitted from the version of the order and the general nature of that matter.

(6) A direction given by the Minister under subsection (4) shall be published in Iris Oifigiúil as soon as practicable.

(7) Evidence of a direction given by the Minister under subsection (4) may be given by the production of a copy of Iris Oifigiúil purporting to contain the direction.”.

6

Section 34

After “State”, insert “(or, where the relevant transfer order under section 33(1) so provides, inside and outside the State)”.

7

After section 34, insert:

“Transfer of property.

34A. —All contracts, agreements, conveyances, mortgages, deeds, leases, licences, undertakings, notices and other instruments, (whether or not in writing) entered into by, made with, given to or by, or addressed to the transferor (whether alone or with another person) relating to assets comprising real property or personal property (including choses in action) transferred are, to the extent that they were previously binding on and enforceable by, against or in favour of the transferor, binding on and enforceable by, against, or in favour of the transferee as fully and effectually in every respect as if the transferee had been the person by whom they were entered into, with whom they were made, or to or by whom they were given or addressed (as the case may be).”.

8

Section 35

After “transferor” (second occurring), insert: “(whether inside or outside the State)”.

9

Section 36

After “in relation to” (first occurring), insert “any property transferred in accordance with or by virtue of the provisions of section 34A or”.

10

Section 37

After “State”, insert “(or, where the relevant transfer order under section 33(1) so provides, inside and outside the State)”.

11

Section 38(1)

Delete “Any officer”, substitute “Subject to subsection (5A), any officer”.

12

Section 38(2)

Delete “Every such officer”, substitute “Subject to subsection (5A), every such officer”.

13

Section 38(3)

Delete “Any benefit”, substitute “Subject to subsection (5A), any benefit”.

14

Section 38(4)

Delete “Service or employment”, substitute “Subject to subsection (5A), service or employment”.

15

Section 38(5)

Delete “the order under section 33 of this Act”, substitute “an order under section 33 (other than an order referred to in subsection (4) of that section)”.

16

After section 38(5), insert:

“(5A) This section does not apply in relation to a transfer of the undertaking of a bank under an order under section 33(1) that is expressed as set out in section 33(4).”.

PART 4

Amendments of Act of 2008

Item

Provision Amended

Amendment

1

Section 6(1)

Substitute:

“6.—(1) As and from the relevant date, and in accordance with this section, the Minister may provide financial support directly or indirectly to any current or former credit institution or current or former subsidiary of a credit institution or former credit institution which the Minister may specify by order having regard to—

( a) the matters set out in section 2,

( b) the extent and nature of the obligations (including the degree of control over possible abuse of the financial support) undertaken and which might be undertaken in the future, and

( c) the resources available to him or her for that purpose.

(1A) For the purposes of this section, the provision of indirect financial support includes the provision of financial support to a person (in particular, a company whose objects include the provision of such financial support) in connection with financial support provided or to be provided by that person to

( a) a credit institution or former credit institution or current or former subsidiary of a credit institution or former credit institution, or

( b) credit institutions (including former credit institutions and current or former subsidiaries of credit institutions or former credit institutions) generally.

(1B) The Minister may establish a company incorporated under the Companies Acts whose objects include the provision of financial support or operating as a parent undertaking of one or more credit institutions to whom the Minister has provided financial support. ”.

2

Section 6(2)

Delete.

3

Section 6(3B)

Delete.

4

After subsection (4), insert:

“(4A) Where financial support is to be provided pursuant to a scheme under subsection (4), the Minister may, at the Minister’s discretion, specify by order a period or periods during which credit institutions may incur borrowings, liabilities and obligations in respect of which financial support may be provided.”.

5

Section 6(20)

Substitute:

“(20) In the event of there being any doubt or uncertainty over whether financial support provided or proposed to be provided to a current or former credit institution or current or former subsidiary of a credit institution or former credit institution may be provided under this section, the Minister may determine the matter. The Minister’s determination is conclusive.”.

PART 5

Amendment of National Asset Management Agency Act 2009

Item

Provision Amended

Amendment

1

Section 194

After subsection (2), insert:

“(2A) On an appeal from a determination of the Court in respect of an application referred to in subsection (1), the Supreme Court—

( a) has jurisdiction to determine only the point of law certified by the Court under subsection (2), and to make only such order in the proceedings as follows from that determination, and

( b) shall, in determining the appeal, act as expeditiously as possible consistent with the administration of justice.”.