F38[24.— (1) A security provided under section 23(a) or (b) shall be—

(a) valid for not more than one year from the date of its commencement,

(b) available to the Commission for Aviation Regulation for the refund of travellers in the circumstances referred to in section 22 or 22A for a period of not more than six months following its expiry where it is not replaced by a new security,

(c) available to the Commission for Aviation Regulation in respect of a package or a linked travel arrangement, regardless of when the package travel contract or linked travel arrangement, was made with the traveller,

(d) an amount that is 4 per cent of the turnover of an organiser or a trader facilitating linked travel arrangements for the latest financial year for which the organiser or trader, as the case may be, has prepared accounts and financial statements or such other amount as shall satisfy the Commission is sufficient to comply with the requirement to provide security in accordance with section 22 or 22A, and is not less than 4 per cent and not more than 10 per cent of the projected turnover of the organiser or trader, for the year for which the security is being arranged, having regard to the factors specified in subsection (6) and the information provided under subsection (7), and

(e) provided to the Commission for Aviation Regulation—

(i) where the security is a guarantee secured with an insurance undertaking, in the form specified in Schedule 3, or

(ii) where the security is a guarantee secured with a person referred to in subsection (5)(a)(iii), in the form specified in Schedule 4.

(2) A security provided under section 23(a) or (b) shall be available to defray any reasonable expenses incurred by the Commission for Aviation Regulation, or provide for any payments made by the Commission, in the refund of travellers affected by the insolvency of an organiser or a trader facilitating linked travel arrangements, as the case may be, in accordance with section 22 or 22A.

(3) Where a security provided under section 23(a) is made available to the Commission for Aviation Regulation in the event of the insolvency of an organiser or a trader facilitating linked travel arrangements, and the Commission is satisfied that all payments have been refunded to travellers in accordance with section 22 or 22A, and any expenses of the Commission have been defrayed in accordance with subsection (2), any residual amount of the security shall be returned to the provider of the security.

(4) The Commission for Aviation Regulation may release an organiser or a trader or a provider of the security from any liability under the security where it is satisfied that the organiser or trader facilitating linked travel arrangements, has discharged all of the obligations the organiser or trader has to refund all payments to travellers in accordance with section 22 or 22A, in respect of package travel contracts or linked travel arrangements or that no such obligations will arise.

(5) (a) A security of the type set out at section 23(b) shall be secured only with—

(i) an insurance undertaking authorised to carry out non-life insurance business (Class 15, suretyship) under the European Communities (Non-Life Insurance) Framework Regulations 1994 (S.I. No. 359 of 1994) (continued in force by section 16 of the Finance (Miscellaneous Provisions) Act 2015),

(ii) an insurance undertaking authorised to carry out non-life insurance business (Class 15, suretyship) under the European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015), or

(iii) a person who is the holder of a licence or authorisation to carry on banking business under the Central Bank Act 1971.

(b) A security of the type set out at section 23(c) shall be secured only with an insurance undertaking referred to in paragraph (a)(i) or (ii).

(6) For the purposes of carrying out its functions under this section, the Commission for Aviation Regulation shall, as it considers appropriate, have regard to the following:

(a) the financial, business and organisational resources of the organiser or trader facilitating linked travel arrangements concerned;

(b) the arrangements made by the organiser or trader facilitating linked travel arrangements concerned, to ensure adequate finances are available to discharge the organiser’s or trader’s actual and potential obligations in respect of the package travel contracts or linked travel arrangements sold or offered for sale, or intended to be sold or offered for sale during the period of the security;

(c) factors determining the value of the packages or linked travel arrangements being sold including the destination, time of travel or mode of transport;

(d) the past activities of the organiser or trader facilitating linked travel arrangements concerned, and the membership or management of that organiser or trader, or the past activities of any person employed by that organiser or trader, or, if that organiser or trader is a body corporate, the past activities of any director, shadow director, de facto director, secretary, shareholder, officer or servant of the body corporate including whether such a person is or was a restricted person, or is an undischarged bankrupt;

(e) the manner in which the organiser or trader facilitating linked travel arrangements concerned is carrying on the business of the sale or offering for sale of package travel contracts or linked travel arrangements, as the case may be.

(7) An organiser or a trader facilitating linked travel arrangements, established in the State, shall maintain the following books, accounts, financial statements and records at its principal place of business or, where the organiser or trader is a corporate body, at its registered office, in the State—

(a) annual accounts duly audited and certified, annual returns and financial statements,

(b) a record, which may be in ledger, computer or other form, of all daily transactions including receipts and expenditures, duly analysed by the different methods of receipt and payment (cash, cheque, debit card, credit card, electronic funds transfer, voucher or any other type of payment), including all monies paid on deposit,

(c) a full record of all bank lodgements and other transactions including cash and credit transactions from which regular financial information can be derived to ascertain the financial position of the business of the organiser or trader facilitating linked travel arrangements from time to time, and a regular and proper bank reconciliation, and

(d) copies of all package travel contracts entered into by the organiser or contracts concluded giving rise to linked travel arrangements facilitated by the trader, as the case may be, relevant to the business of the organiser or trader as appropriate, during the period of the security,

and shall furnish copies or extracts thereof on request by an authorised officer within the period specified by that person which shall not be less than 14 days from the date of the request.

(8) In this section—

"Act of 2014" means the Companies Act 2014;

"de facto director" shall be construed in accordance with section 222 of the Act of 2014;

"financial statements" means a summary (as at a particular date) of the assets, liabilities and financial position of the organiser or trader facilitating linked travel arrangements, as the case may be, together with the profit or loss, since the date of the previous financial statements and shall comprise—

(a) a balance sheet as at the end of the financial year,

(b) a profit and loss account for the financial year, and

(c) any other additional statements and information attached to the foregoing and forming part of them,

and such statements shall give a true and fair view of the assets, liabilities and financial position as at the end of the financial year, and the profit or loss for the financial year, of the organiser or trader;

"financial year" shall be construed in accordance with section 288 of the Act of 2014;

"projected turnover" means the total of receipts estimated by an organiser or a trader facilitating linked travel arrangements in respect of package travel contracts or linked travel arrangements, as appropriate, to be sold or offered for sale during the period of the security of the type referred to in section 24 being arranged by such organiser or trader, as the case may be;

"restricted person" has the same meaning as it has in section 818(1) of the Act of 2014;

"shadow director" shall be construed in accordance with section 221(1) of the Act of 2014;

"undischarged bankrupt" has the same meaning as it has in section 2(1) of the Act of 2014.]