43.—F46[(1) If the Bank or the Governor has reasonably formed the opinion that a person is not of such fitness and probity as is appropriate to perform a particular controlled function, a specified part of a controlled function, or any controlled function, the Bank or the Governor, as the case may be, may, subject to subsections (3) and (4), impose on the person a prohibition that, as respects the controlled function, the specified part of a controlled function, or any controlled function—

(a) forbids the person—

(i) to carry out the function or part at all, or

(ii) to carry it out otherwise than in accordance with a specified condition or conditions,

(b) forbids the person—

(i) to carry out the function or part in relation to a specified regulated financial service provider or holding company or specified regulated financial service providers or holding companies,

(ii) to carry it out in relation to a specified class or specified classes of regulated financial service providers or holding companies, or

(iii) to carry it out in relation to any regulated financial service provider or holding company,

and

(c) is imposed indefinitely or for a specified period.]

(2) Without prejudice to the generality of subsection (1), the Bank or the Governor may form the opinion referred to in that subsection if satisfied that—

(a) the person does not have the experience, qualifications or skills necessary to perform properly and effectively the controlled function, the specified part of a controlled function or any controlled function, as the case may be,

(b) the person does not satisfy an applicable standard of fitness and probity in a code issued pursuant to section 50,

F46[(c) the person has committed or participated in serious misconduct in relation to the affairs of a regulated financial service provider or holding company,]

F47[(ca) the person, being a person who has been appointed to perform a pre-approval controlled function, has failed to make a disclosure to the Bank under section 38(2) of the Central Bank (Supervision and Enforcement) Act 2013 or has made such a disclosure knowing it to be false or misleading in a material respect,]

(d) the person has directly or indirectly provided information to the Bank, the Governor or the Head of Financial Regulation (whether pursuant to this Part or otherwise) that the person knew or ought to have known was false or misleading,

(e) the person has directly or indirectly provided information that the person knew or ought to have known was false or misleading to another person in order for it to be provided to the Bank, the Governor or the Head of Financial Regulation,

(f) the person has caused or sought to cause information requested by the Head of Financial Regulation by evidentiary notice from a regulated financial service provider F48[or holding company] or a person who is carrying out a controlled function not to be provided by the due date,

(g) the person has failed to comply with an evidentiary notice or a suspension notice, or

(h) the person has been convicted of an offence (whether in the State or outside the State) of money laundering or terrorist financing or an offence involving fraud, dishonesty or breach of trust.

F48[(2A) Any finding of fact made by the Bank or the Governor for the purpose of forming the opinion referred to in subsection (1) shall be made on the balance of probabilities.]

(3) The Bank or the Governor shall not F46[impose a prohibition on a person under subsection (1)] unless—

(a) either—

(i) all of the following requirements have been satisfied:

(I) the Head of Financial Regulation has conducted an investigation into the person’s fitness and probity in accordance with F46[Chapter 3];

(II) section 41 has been complied with in relation to that investigation and the report of it;

(III) the Bank or the Governor, as the case may be, has considered the report and any submissions made F46[in accordance with paragraph (c) of section 41(2)],

or

(ii) there are undisputed facts that in the reasonable opinion of the Bank or the Governor render an investigation unnecessary, and the person F46[, and any person to whom subsection (3A) applies,] have been afforded a reasonable opportunity to make a submission in relation to the matter,

F46[(b) the person and any person to whom subsection (3A) applies—

(i) have access to any material taken into account by the Bank or the Governor for the purpose of ensuring that the proposed decision is consistent and proportionate, having regard to other decisions under subsection (1), and

(ii) have been afforded such a hearing in relation to the proposed decision as is necessary to do justice in the circumstances,

and

(c) the Bank or the Governor, as the case may be, is satisfied that the imposition of the prohibition is necessary in the circumstances.]

F48[(3A) In relation to the imposition of a prohibition on any person, this subsection applies—

(a) where the person is subject to a suspension notice, to any regulated financial service provider or holding company on which the Head of Financial Regulation is required by section 26(5) to serve a copy of the notice,

(b) to any regulated financial service provider or holding company in relation to which, to the knowledge of the Bank or the Governor, as the case may be, the person performs a controlled function to which the prohibition would apply,

(c) to any regulated financial service provider or holding company which, to the knowledge of the Bank or the Governor, as the case may be, proposes to appoint the person to perform in relation to it a controlled function to which the prohibition would apply, and

(d) to any regulated financial service provider or holding company which the Bank or the Governor, as the case may be, has reason to believe is considering the appointment of the person to perform in relation to it a controlled function to which the prohibition would apply.]

(4) When considering whether to F46[impose a prohibition under subsection (1)], the Bank or the Governor, as the case may be, shall have particular regard to—

(a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and

(b) the need to protect users of financial services.

F48[(4A) A prohibition under subsection (1) shall be imposed by a notice in writing (in this Part referred to as a "prohibition notice").

(4B) Where more than one prohibition is imposed under subsection (1) on the same person, they may be imposed by the same prohibition notice.

(4C) A prohibition notice—

(a) shall be served on the prohibited person, and

(b) may be served on a regulated financial service provider or holding company.

(4D) Subject to section 46, a prohibition notice does not take effect unless confirmed on an application under section 45.]

(5) F49[…]

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Subject to section 46, a prohibition notice ceases to have effect at the end of 2 months (or a shorter period specified in the notice) beginning on the day after it is first served as mentioned in paragraph (a) if no application is made to the Court within that period.

(8) A prohibited person shall not perform a controlled function if doing so would require the person to contravene a prohibition notice served on the person.

F46[(9) A regulated financial service provider or holding company shall not permit a prohibited person to perform a controlled function in relation to it if doing so would require the person to contravene a prohibition notice served on it.]

(10) The Bank may publish a prohibition notice if, in the opinion of the Governor, it is necessary to do so in order to achieve the purposes of this Part.

(11) A prohibition notice does not alter the contractual rights of any person to remuneration or benefits. Those rights shall continue to be determined in accordance with the relevant contract.

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