Credit Institutions (Stabilisation) Act 2010

PART 5

Transfer of assets and liabilities

33.

Proposed transfer orders.

33.— (1) Subject to subsections (2) and (4), the Minister may make a proposed transfer order in relation to the transfer of assets or liabilities of a relevant institution.

F36 [ (2) The Minister may make a proposed transfer order only if the Minister, having consulted with the Governor, is of the opinion that, having regard to any adverse consequences that may arise as a result of the transfer order, in relation to the interests generally of the creditors of the transferor or, where the transferor is a subsidiary or holding company, in relation to the interests generally of the creditors of the transferor or the relevant institution concerned, making a transfer order in the terms of the proposed transfer order is necessary to secure the achievement of a purpose of this Act specified in the proposed transfer order.

(2A) Nothing in subsection (2) requires the Minister to consider the possible adverse consequences of the transfer order concerned on the interests of a particular creditor or class of creditors of the transferor or relevant institution, as the case may be, or to consider any submission made by a creditor on behalf of that creditor, a class of creditors or creditors generally. ]

(3) If the Minister makes a proposed transfer order in relation to a relevant institution and the intention of it or part of it is the preservation or restoration of the financial position of a credit institution, the Minister shall declare in the proposed transfer order that the proposed transfer order or part is made with that intention, in accordance with the CIWUD Directive.

(4) Unless the relevant institution concerned consents to the making of a transfer order in the terms of the proposed transfer order, or exceptional circumstances (within the meaning of subsection (5) ) exist, the Minister shall also, before making a proposed transfer order—

( a) deliver a written notice to the relevant institution describing the terms of the proposed transfer order, accompanied by a summary of the reasons why the Minister is of the opinion that such an order is necessary,

( b) afford the relevant institution 48 hours, or a shorter period on which the Minister and the relevant institution agree, in which to make written submissions to the Minister, and

( c) consider any submissions made under paragraph (b).

F37 [ (4A) If the Minister proposes that the transfer order or any term of it have immediate effect, the Minister shall state, in the written notice given under subsection (4)( a ), that fact and the reasons why the order or term should have that effect. ]

(5) Exceptional circumstances for the purposes of subsection (4) exist where—

( a) there is an imminent threat to the financial stability of the relevant institution concerned and the Minister is of the opinion that compliance with that subsection would result in significant damage to the financial stability of that relevant institution,

( b) there is an imminent threat to the stability of the financial system in the State and the Minister is of the opinion that compliance with that subsection would result in significant damage to the stability of that financial system, or

( c) the Minister has reasonable grounds for believing that confidentiality with regard to the transfer order, or the possibility of the making of a transfer order, would not be maintained and that the breach of such confidentiality would have significant adverse consequences.

(6) A proposed transfer order—

( a) shall contain such terms and conditions as the Minister proposes relating to the proposed transfer, including the specification of a date by which or a period within which the institution is required to comply, and

( b) may include such incidental, consequential and supplemental provisions as the Minister considers appropriate for implementing the transfer and securing that it be fully and effectively carried out, including provisions for substituting the name of the transferee for that of the transferor or otherwise adapting references to the transferor in any instrument made under an Act, and may provide for such transitional matters, including the sharing of assets and other contracts, as the Minister considers appropriate.

Annotations:

Amendments:

F36

Substituted and inserted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 37, S.I. No. 548 of 2011.

F37

Inserted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 38, S.I. No. 548 of 2011.