Credit Institutions (Stabilisation) Act 2010

2.

Interpretation.

2.— (1) In this Act—

“Act of 2008” means the Credit Institutions (Financial Support) Act 2008;

“articles of association” includes—

F1 [ ( a ) in the case of a credit institution that is established by charter, its bye-laws, and

( b ) in the case of a credit institution that is a building society, its rules; ]

“Bank” means the Central Bank of Ireland;

“charge” includes—

( a) a mortgage, judgment mortgage, charge, lien, pledge, hypothecation or other security interest or encumbrance or collateral in or over any property,

( b) an assignment by way of security, and

( c) an undertaking or agreement by any person (including a solicitor) to give or create a security interest in property;

“CIWUD Directive” means Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 1;

“Court” means the High Court;

“credit institution” means a person authorised in the State to accept deposits or other repayable funds from the public and to grant credit on its own account;

“debt security” includes a note, bill, bond or similar financial instrument;

“direction order” has the meaning given by section 9 ;

“enactment” means—

( a) an Act of the Oireachtas,

( b) a statute that was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and that continues in force by virtue of Article 50 of the Constitution, or

( c) an instrument made under—

(i) an Act of the Oireachtas, or

(ii) a statute referred to in paragraph (b) ;

“financial support” has the same meaning as in the Act of 2008;

F2 [ functions includes powers, duties, rights and entitlements, and references to the performance of a function include reference to

( a ) in relation to a power, the exercise of the power,

( b ) in relation to a duty, the performance of the duty, and

( c ) in relation to a right or entitlement, the exercise of the right or entitlement; ]

“Governor” means the Governor of the Bank;

“holding company” means a holding company (within the meaning of section 155 of the Companies Act 1963) or a parent undertaking (within the meaning given by the European Communities (Companies: Group Accounts) Regulations 1992 ( S.I. No. 201 of 1992));

“interest”, in relation to an asset or liability, means—

( a) the whole or any part or fraction of the asset or liability,

( b) any other estate in, right or title to, or interest in the asset or liability (whether legal or beneficial), or

( c) any interest, other than a legal or beneficial interest, in the asset or liability;

“loan instrument” means a document that creates or acknowledges a debt or liability (other than a deposit account);

“memorandum of association” includes, in the case of a credit institution that is established by charter, its charter;

“Minister” means the Minister for Finance;

“regulated market” has the same meaning as in the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60 of 2007);

“Regulations of 2004” means the European Communities (Reorganisation and Winding-Up of Credit Institutions) Regulations 2004 ( S.I. No. 198 of 2004);

“relevant institution” means (subject to section 55 )—

( a) a body—

(i) that has its registered office in the State,

(ii) that is, or was on the date on which this Act came into operation, a bank licensed under section 9 of the Central Bank Act 1971, and

(iii) to which financial support F3 [ , other than a financial incentive under section 38, or under section 46 of the Central Bank and Credit Institutions (Resolution) Act 2011 , No. of 2011 ), ] has been given or is to be given by the Minister,

( b) a body that has its chief office in the State and is, or was on the date on which this Act came into operation, a building society within the meaning of the Building Societies Act 1989,

( c) F4 [ ]

( d) a person or body prescribed under section 3,

( e) a subsidiary of a person or body referred to in any of paragraphs (a) to (d) , and

( f) a holding company of a person or body referred to in any of paragraphs (a) to (d);

“security” includes—

( a) a charge,

( b) a mortgage,

( c) a guarantee, indemnity or surety,

( d) a right of set-off,

( e) a debenture,

( f) a bill of exchange,

( g) a promissory note,

( h) collateral,

( i) any other means of securing—

(i) the payment of a debt, or

(ii) the discharge or performance of an obligation or liability,

and

( j) any other agreement or arrangement having a similar effect;

“share” includes a share of any type or class including ordinary shares, preference shares, deferred shares, share warrants and stock and in the case of a building society includes investment shares, special investment shares and deferred shares but does not include share accounts;

“special management order” has the meaning given by section 14 ;

“special manager” means any person appointed as such by the Court or the Minister;

“subordinated creditor” means a creditor of a relevant institution, to any extent that the creditor holds a subordinated liability;

“subordinated liability” means, in respect of a relevant institution, an obligation or a liability in the form of a debt security or loan instrument (or any other document howsoever described or constituted) which is expressed to be, or otherwise ranks, subordinate in right of payment to the claims of depositors and unsubordinated creditors of the relevant institution, whether on a winding up or otherwise, and includes a guarantee;

“subsidiary” means a subsidiary (within the meaning given by section 155 of the Companies Act 1963) or a subsidiary undertaking (within the meaning given by the European Communities (Companies: Group Accounts) Regulations 1992 ( S.I. No. 201 of 1992));

“subordinated liabilities order” has the meaning given by section 29 ;

“transfer order” has the meaning given by section 34 .

(2) A reference in this Act to an agreement includes—

( a) any instrument (however described) that creates an obligation, whether made in writing or under seal, and without limiting the generality of the foregoing includes an agreement, an arrangement, an undertaking, a scheme, a licence, a security or an obligation, and

( b) an oral agreement of any kind referred to in paragraph (a).

(3) In this Act—

( a) a reference to an asset includes an interest in an asset, and

( b) a reference to a liability includes an interest in a liability.

(4) A reference in this Act to disposing of an asset or liability includes selling or otherwise transferring, and creating a security or equitable interest in, the asset or liability. For the purposes of this subsection “transfer” includes—

( a) any form of legal or beneficial transfer, including a vesting by operation of law,

( b) a synthetic transfer,

( c) a risk transfer,

( d) a novation,

( e) an assignment,

( f) an assumption,

( g) sub-participation,

( h) sub-contracting, and

( i) any other form of transfer, acquisition, assumption or vesting recognised by law.

F5 [ (5) A reference in this Act to the preservation of the financial position of a relevant institution shall be taken to include the need for the relevant institution to comply with such one or more of the following as apply to it:

( a ) an order made in relation to it under this Act;

( b ) a requirement imposed on it under section 50;

( c ) the European Communities (Capital Adequacy of Credit Institutions) Regulations 2006 ( S.I. No. 661 of 2006 ). ]

Annotations:

Amendments:

F1

Substituted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 1, S.I. No. 548 of 2011.

F2

Inserted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 2, S.I. No. 548 of 2011.

F3

Inserted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 3, S.I. No. 548 of 2011.

F4

Deleted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 4, S.I. No. 548 of 2011.

F5

Inserted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 5, S.I. No. 548 of 2011.

Editorial Notes:

E3

The amendment to par. (a)(iii) in the definition of “relevant institution” as per F note above did not include the number allocated to Central Bank and Credit Institutions (Resolution) Act 2011. The Central Bank and Credit Institutions (Resolution) Act 2011 is Act No. 27 of 2011.