F35[28.—F36[(1)]In this Part—

F37["Act of 1995" means the Consumer Credit Act 1995;]

"Appeals Tribunal" means the Irish Financial Services Appeals Tribunal established under Part VIIA of the Central Bank Act 1942 ;

F38["authorisation" means an authorisation of a person to carry on a regulated business and, if an authorisation is amended in accordance with section 34, means the authorisation as amended;]

"bureau de change business" means a business that comprises or includes providing members of the public with a service that involves buying or selling foreign currency, other than a service that is provided—

F39[(a) by a person or body that is required to be licensed, registered or otherwise authorised by the Bank under a designated enactment (other than under this Part) or designated statutory instrument, or]

(b) F40[…]

(c) by a person or body on an ancillary basis in the ordinary course of providing services to customers of the person or body;

F41["consumer" means—

(a) an individual acting otherwise than in the course of business, or

(b) a micro enterprise within the meaning given by Commission Recommendation 2003/361/EC of 6 May 2003³ concerning the definition of micro, small and medium sized enterprises;]

F37["consumer-hire agreement" means an agreement of more than three months duration for the bailment of goods to a hirer under which the property in the goods remains with the owner;]

F45["credit" means—

(a) a deferred payment,

(b) a cash loan (whether or not provided on the security of a mortgage or charge over an estate or interest in land), or

(c) other similar financial accommodation,

but does not include—

(i) credit of a class specified in section 3(2) of the Act of 1995,

(ii) credit granted or made available under an agreement of a class specified in section 3(2) of the Act of 1995,

(iii) credit arising under a transaction of a class specified in section 3(2) of the Act of 1995,

(iv) a payment of a class specified in section 3(2) of the Act of 1995, or

(v) bailment of goods to a hirer under an agreement of less than 3 months’ duration under which the property in the goods remains with the owner;]

F46["credit agreement" means an agreement whereby a creditor grants, or promises to grant, credit to a relevant borrower;]

F42["credit servicing" means—

(a) in relation to a credit agreement, subject to subsection (2)(a) —

(i) holding the legal title to the rights of the creditor under the agreement,

(ii) managing or administering the agreement, including—

(I) notifying the relevant borrower of changes in interest rates or in payments due under the agreement or other matters of which the agreement requires the relevant borrower to be notified,

(II) taking any necessary steps for the purposes of collecting or recovering payments due under the agreement from the relevant borrower, or

(III) managing or administering any of the following:

(A) repayments under the agreement;

(B) any charges imposed on the relevant borrower under the agreement;

(C) any errors made in relation to the agreement;

(D) any complaints made by the relevant borrower;

(E) information or records relating to the relevant borrower in respect of the agreement;

(F) the process by which a relevant borrower’s financial difficulties are addressed;

(G) any alternative arrangements for repayment or other restructuring;

(H) assessment of the relevant borrower’s financial circumstances and ability to repay under the agreement;

(I) determination of the overall strategy for the management and administration of a portfolio of such agreements;

(J) maintenance of control over key decisions relating to such a portfolio,

or

(iii) communicating with the relevant borrower in respect of any of the matters referred to in subparagraph (ii),

and

(b) in relation to a hire-purchase agreement or a consumer-hire agreement, subject to subsection (2)(b) —

(i) holding the legal title to the rights of the owner under the agreement,

(ii) managing or administering the agreement, including—

(I) notifying the hirer of changes in payments due under the agreement or other matters of which the agreement requires the hirer to be notified,

(II) taking any necessary steps for the purposes of collecting or recovering payments due under the agreement from the hirer, or

(III) managing or administering any of the following:

(A) repayments under the agreement;

(B) any charges imposed on the hirer under the agreement;

(C) any errors made in relation to the agreement;

(D) any complaints made by the hirer; (E) information or records relating to the hirer in respect of the agreement;

(F) the process by which a hirer’s financial difficulties are addressed;

(G) any alternative arrangements for repayment or other restructuring;

(H) assessment of the hirer’s financial circumstances and ability to repay under the agreement;

(I) determination of the overall strategy for the management and administration of a portfolio of hire-purchase agreements, consumer-hire agreements or a mixture of hire-purchase and consumer-hire agreements;

(J) maintenance of control over key decisions relating to such a portfolio,

or

(iii) communicating with the hirer in respect of any of the matters referred to in subparagraph (ii);]

F47["credit servicing firm" means, F43[subject to subsections (2A) and (2B)]—

(a) a person (other than the National Asset Management Agency or a NAMA group entity (within the meaning of the National Asset Management Agency Act 2009 )) who undertakes credit servicing other than on behalf of an F43[regulated credit entity],

(b) a regulated financial service provider taken to be authorised to carry on the business of a credit servicing firm by virtue of F43[subsection (3) or (3A)],

(c) a credit servicing firm taken to be authorised to carry on the business of a credit servicing firm by virtue of subsection (4), or

F43[(d) a credit servicing firm referred to in paragraph (b) of section 34FA(1) that undertakes, on behalf of a person referred to in the said section 34FA, credit servicing within the meaning of clauses (I), (II) and (III)(A) to (H) of subparagraph (ii) and subparagraph (iii) of paragraph (a) of the definition of "credit servicing";]]

F46["creditor" means a person who grants credit under a credit agreement in the course of the person’s trade, business or profession, and includes a group of such persons;]

F41["debt management firm" means a person who for remuneration provides debt management services to one or more consumers, other than an excepted person;]

F41["debt management services" means—

(a) giving advice about the discharge of debts (in whole or in part), including advice about budgeting in connection with the discharge of debts,

(b) negotiating with a person’s creditors for the discharge of the person’s debts (in whole or in part), or

(c) any similar activity associated with the discharge of debts;]

F41["excepted person" means—

(a) any charitable organisation within the meaning of section 2(1) of the Charities Act 2009,

(b) the Money Advice and Budgeting Service,

(c) any licensed bank, building society, credit union or friendly society,

(d) a barrister, solicitor or accountant who provides debt management services only in an incidental manner and is subject to regulation by a professional body,

(e) a person who is a party to the Protocol for Independent Advice to Borrowers Availing of Long Term Mortgage Forbearance made on 2 August 2012 (as amended from time to time) and provides advice in accordance with that Protocol,

(f) the Insolvency Service of Ireland, any approved intermediary authorised under section 47 of the Personal Insolvency Act 2012 acting as such or any personal insolvency practitioner authorised under Chapter 1 of Part 5 of that Act carrying on practice as such,

(g) personal representatives (within the meaning of section 3 of the Succession Act 1965),

(h) trustees of a trust, other than a trust which is established to provide debt management services,

(i) the Bank,

(j) An Post,

(k) the National Asset Management Agency,

(l) the National Treasury Management Agency,

(m) the National Consumer Agency, and

(n) any other person constituted, or holding office, under an enactment or funded (in whole or in part) by a Minister of the Government;]

F48["exposure" and “servicing” have the same meanings, respectively, as in the Securitisation Regulation;]

F37["financial accommodation" has the same meaning as it has in the Act of 1995;]

F37["hirer" means a relevant person who takes, intends to take or has taken goods from an owner under a hire-purchase agreement or a consumer-hire agreement in return for periodical payments;]

F37["hire-purchase agreement" means an agreement for the bailment of goods under which the hirer may buy the goods or under which the property in the goods will, if the terms of the agreement are complied with, pass to the hirer in return for periodical payments; and where by virtue of two or more agreements, none of which by itself constitutes a hire-purchase agreement, there is a bailment of goods and either the hirer may buy the goods, or the property therein will, if the terms of the agreements are complied with, pass to the hirer, the agreements shall be treated for the purpose of this Act as a single agreement made at the time when the last agreement was made;]

F44["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;]

F44["home reversion firm" means a person carrying on a business of entering into home reversion agreements;]

F49[…]

F37["local authority" has the same meaning as it has in the Act of 1995;]

"money" includes any representation of money (such as a cheque) and any means by which monetary value is stored;

"money transmission business" means a business that comprises or includes providing a money transmission service to members of the public;

F38["money transmission service" means a service that involves transmitting money by any means, other than a service—

(a) that is a payment service to which the European Communities (Payment Services) Regulations 2009 (S.I. No. 383 of 2009) apply,

(b) that is provided to customers on a basis that is ancillary to any other services apart from debt management services,

(c) that is provided by—

(i) any charitable organisation within the meaning of section 2(1) of the Charities Act 2009,

(ii) the Money Advice and Budgeting Service,

(iii) any licensed bank, building society, credit union or friendly society,

F46[(iiia) a person authorised to carry on the business of a credit servicing firm,]

(iv) a barrister, solicitor or accountant who provides money transmission services only in an incidental manner and is subject to regulation by a professional body,

(v) the Insolvency Service of Ireland, any approved intermediary authorised under section 47 of the Personal Insolvency Act 2012 acting as such or any personal insolvency practitioner authorised under Chapter 1 of Part 5 of that Act carrying on practice as such,

(vi) personal representatives (within the meaning of section 3 of the Succession Act 1965),

(vii) trustees of a trust, other than a trust which is established to provide money transmission services,

(viii) the Bank,

(ix) An Post,

(x) the National Asset Management Agency,

(xi) the National Treasury Management Agency,

(xii) the National Consumer Agency, and

(xiii) any other person constituted, or holding office, under an enactment or funded (in whole or in part) by a Minister of the Government.]

"officer", in relation to a person that is a body corporate, means any person concerned in the direction or management of the body;

F55["originator", "sponsor", "original lender", "securitisation", "NPE securitisation", "servicer" and "traditional securitisation" have the meanings given to them respectively by Article 2 of the Securitisation Regulation;]

F37["owner" means the person who lets or has let goods to a hirer under a hire-purchase agreement or a consumer-hire agreement;]

F50[F51[…]]

F46["prescribed contravention" has the same meaning as in the Act of 1942;]

F41["qualifying shareholder", in relation to another person, means a person with a direct or indirect holding in the other person—

(a) that represents 10 per cent or more of the capital of, or the voting rights in, the other person, or

(b) that makes it possible to exercise a significant influence over the management of the other person;]

F53["regulated business" means a bureau de change business, a money transmission business, the business of a home reversion firm, the business of a retail credit firm, the business of a debt management firm or the business of a credit servicing firm;]

F37["regulated credit entity" means—

(a) a person who is authorised, or, by virtue of subsection (4) or (5), taken to be authorised, to carry on the business of a credit servicing firm, or

(b) a regulated financial services provider authorised, by the Bank or an authority that performs functions in an EEA country that are comparable to the functions performed by the Bank, to carry on a relevant activity in the State;]

F44["regulated financial service provider" has the same meaning as in section 2 of the Central Bank Act 1942;]

F37["relevant activity" means—

(a) directly or indirectly providing credit to, or

(b) entering into a consumer-hire agreement or hire-purchase agreement with,

a relevant person;]

F46["relevant borrower" means—

(a) a relevant person, or

(b) a micro, small or medium-sized enterprise within the meaning of Article 2 of the Annex to the Commission Recommendation 2003/361/EC of 6 May 2003 1 but only to the extent that the credit granted to it under the credit agreement concerned was provided by a financial service provider authorised, by the Bank or an authority that performs functions in an EEA country that are comparable to the functions performed by the Bank, to provide credit in the State;]

F44["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;]

F41["remuneration", in relation to debt management services, means any commission or other payment, whether paid directly or indirectly, in respect of the debt management services and includes a payment made in respect of the provision of services other than debt management services as a result of which debt management services are provided otherwise than for payment;]

F54["retail credit firm" means a person whose business consists wholly or partly of any relevant activity but does not include—

(a) a person who is a regulated financial service provider authorised, otherwise than under this Part, by—

(i) the Bank, or

(ii) an authority that performs functions in an EEA country that are comparable to the functions performed by the Bank,

to carry out any relevant activity in the State,

(b) a person who is a credit intermediary authorised under the Act of 1995,

(c) in relation to—

(i) 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

(ii) a consumer-hire agreement or a hire-purchase agreement that was entered into by another person, a person to whom that other person’s interest in the agreement concerned is directly or indirectly assigned or otherwise disposed of,

(d) a person who carries out relevant activities on a once only or occasional basis and, in so doing, does not represent or create an impression (whether in advertising, marketing or otherwise) that the person would enter into agreements with other persons on the same or substantially similar terms as the agreements under which those relevant activities are carried out,

(e) a person who is exempted, or a person who belongs to a class of persons that is exempted, for the purposes of this paragraph, under section 29A,

(f) a person whose business consists partly of a relevant activity, but only by virtue of the person providing credit in the form of trade credit, or

(g) a local authority.]

F55["retain on an ongoing basis a material net economic interest in the securitisation of not less than 5 per cent" shall be construed in accordance with Article 6 of the Securitisation Regulation;]

F48["Securitisation Regulation" means Regulation (EU) 2017/2402⁹ of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation and amending Directives 2009/65/EC¹⁰, 2009/138/EC¹¹ and 2011/61/EU¹² and Regulations (EC) No. 1060/2009¹³ and (EU) No. 648/2012¹⁴ as amended by Regulation (EU) 2021/557 of the European Parliament and of the Council of 31 March 2021¹⁵,]

F50["securitisation special purpose entity" means a corporation, trust or other entity (other than an originator or sponsor)—

(a) established for the purpose of carrying out one or more securitisations,

(b) the activities of which are limited to those appropriate to accomplishing that objective, and

(c) the structure of which is intended to isolate the obligations of the securitisation special purpose entity from those of the originator;]

"this Part" includes all regulations in force under this Part;

F48["traditional NPE securitisation" shall be construed in accordance with the Securitisation Regulation;]

"transmitting" includes transmitting—

(a) by means of a message or other form of communication, or

(b) by means of a transfer instrument, or

(c) by means of a clearing network.]

F56[(1A) For the purposes of paragraph (f) of the definition of "retail credit firm" in subsection (1), credit (in this subsection referred to as "the relevant credit") is provided in the form of trade credit if all of the following conditions are satisfied:

(a) in the case of both the person (in this subsection referred to as "the first-mentioned person") by whom, and the person to whom, the relevant credit is provided, each is acting in the course of his or her business, trade or profession;

(b) the first-mentioned person is not a regulated financial service provider;

(c) the terms of the relevant credit provide for repayment, whether in instalments or as a single amount, of the whole of the credit by a date that is not later than 6 months after the date of its provision;

(d) the purpose of the relevant credit is to facilitate the purchase of goods or services from the first-mentioned person.]

F57[(2) For the purposes of this Part—

(a) a person who holds the legal title to the rights of the creditor under a credit agreement (in this paragraph referred to as "the holder") is taken to be credit servicing even if any action referred to in subparagraph (ii) or (iii), as the case may be, of paragraph (a) of the definition of "credit servicing" in subsection (1) is being undertaken by a person, acting on behalf of the holder, authorised to carry on the business of a credit servicing firm, and

(b) a person who holds the legal title to the rights of the owner under a consumer-hire agreement or a hire-purchase agreement (in this paragraph referred to as "the holder") is taken to be credit servicing even if any action referred to in subparagraph (ii) or (iii), as the case may be, of paragraph (b) of the definition of "credit servicing" in subsection (1) is being undertaken by a person, acting on behalf of the holder, authorised to carry on the business of a credit servicing firm.]

F58[(2A) For the purposes of this Part, "credit servicing firm", in relation to credit granted by, or the holding of legal title of the rights of a creditor under a credit agreement by, a regulated credit entity, does not include a securitisation special purpose entity to which any part of the interest of the regulated credit entity in the credit or rights concerned is directly or indirectly assigned or otherwise disposed of, as part of a securitisation, where—

(a) the securitisation special purpose entity was established by or on behalf of the regulated credit entity as part of the securitisation arranged by or on behalf of that regulated credit entity,

(b) the regulated credit entity retains the legal title in respect of the interest so assigned or otherwise disposed of, and

(c) either—

(i) the originator, sponsor or original lender of the securitisation, or

(ii) in the case of a traditional NPE securitisation, the servicer, where it can demonstrate that it has expertise in servicing exposures of a similar nature to those securitised and that it has well-documented and adequate policies, procedures and risk-management controls in place relating to the servicing of exposures as required by Article 6 of the Securitisation Regulation,

is required to retain on an ongoing basis a material net economic interest in the securitisation of not less than 5 per cent.]

F59[(2B) For the purposes of this Part, "credit servicing firm", in relation to the rights of an owner under a consumer-hire agreement or hire-purchase agreement held by, or the holding of legal title to such rights by, a regulated credit entity, does not include a securitisation special purpose entity to which any part of the interest of the regulated credit entity in the rights concerned is directly or indirectly assigned or otherwise disposed of, as part of a securitisation, where—

(a) the securitisation special purpose entity was established by or on behalf of the regulated credit entity as part of the securitisation arranged by or on behalf of that regulated credit entity,

(b) the regulated credit entity retains the legal title in respect of the interest so assigned or otherwise disposed of, and

(c) either—

(i) the originator, sponsor or original lender of the securitisation, or

(ii) in the case of a traditional NPE securitisation, the servicer, where it can demonstrate that it has expertise in servicing exposures of a similar nature to those securitised and that it has well-documented and adequate policies, procedures and risk-management controls in place relating to the servicing of exposures as required by Article 6 of the Securitisation Regulation,

is required to retain on an ongoing basis a material net economic interest in the securitisation of not less than 5 per cent.]

F36[(3) For the purposes of this Part, a regulated financial service provider authorised, whether before or after the coming into operation of the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015, by the Bank or an authority that performs functions in an EEA country that are comparable to the functions performed by the Bank, to provide credit in the State, is taken to be authorised to carry on F60[the business of a credit servicing firm in so far as that business comprises the activities referred to in paragraph (a) of the definition of "credit servicing" in subsection (1)].]

F61[(3A) For the purposes of this Part, a person authorised by the Bank to carry on the business of a retail credit firm in respect of the activity referred to in paragraph (b) of the definition of "relevant activity" in subsection (1) is taken to be authorised to carry on the business of a credit servicing firm in so far as that business comprises the activities referred to in paragraph (b) of the definition of "credit servicing" in that subsection.]

F62[(4) For the purposes of this Part, a person (other than a regulated financial service provider taken to be authorised to carry on the business of a credit servicing firm by virtue of subsection (3)) authorised to carry on the business of a credit servicing firm before the coming into operation of the Consumer Protection (Regulation of Credit Servicing Firms) Act 2018 is taken to be authorised to carry on the business of a credit servicing firm after such coming into operation.]

F63[(5) For the purposes of this Part, a person (other than a regulated financial service provider taken to be authorised to carry on the business of a credit servicing firm by virtue of subsection (3)) authorised to carry on the business of a credit servicing firm before the coming into operation of section 2 (a)(iii) of the Consumer Protection (Regulation of Retail Credit and Credit Servicing Firms) Act 2022 is taken to be authorised to carry on the business of a credit servicing firm, in so far as that business comprises the activities referred to in paragraph (a) of the definition of "credit servicing" in subsection (1), after such coming into operation.]