Central Bank Act 1942 (Sections 33J and 33K) Regulations, 2004

JurisdictionIreland
CitationIR SI 447/2004

I, LIAM O'REILLY, Chief Executive of the Irish Financial Services Regulatory Authority, in exercise of the powers conferred on me by Sections 33J and 33K of the Central Bank Act 1942 (as inserted by the Central Bank and Financial Services Authority of Ireland Act 2003 ), with the agreement of the members of the Irish Financial Services Regulatory Authority, and with the approval of the Minister for Finance, hereby make the following regulations:

1. These Regulations may be cited as the Central Bank Act 1942 (Sections 33J and 33K) Regulations 2004.

2. In these Regulations—

“Authority” means the Irish Financial Services Regulatory Authority;

“Bank” means the Central Bank and Financial Services Authority of Ireland;

“Chief Executive” means the Chief Executive for the time being of the Authority;

“designated enactments” means the enactments specified in Part 1 of Schedule 2 of the Central Bank Act 1942 ;

“designated statutory instruments” means the statutory instruments specified in Part 2 of Schedule 2 of the Central Bank Act 1942 ;

“levy notice” means a notice sent by the Authority in accordance with Regulation 6;

“levy period” means the period prescribed in Regulation 5 and in the Schedule in respect of which regulated entities are obliged to pay the required levy contributions;

“regulated entities” means persons who are subject to regulation under the designated enactments and designated statutory instruments (including financial service providers whose business is subject to regulation by an authority that performs functions in an EEA country that are comparable to the functions performed by the Authority under a designated enactment or designated statutory instrument) and “regulated entity” shall be construed accordingly;

“Schedule” means the Schedule to these Regulations.

3. These Regulations may be amended by the Chief Executive, with the approval of the members of the Authority, from time to time. Any such amendment shall not take effect until approved by the Minister for Finance.

4. (a) Subject to paragraph (b), these Regulations supersede and replace all regulations, requirements or administrative practices in force whereby a regulated entity is obliged to make an annual or other payment, by way of fee or otherwise, to the Authority or any part of the Authority in respect of the exercise by the Authority of any of its functions under the designated enactments or designated statutory instruments.

Without prejudice to paragraph (d) below,

(i) the instruments contained in Part A of the Schedule are hereby revoked;

(ii) the fee payable by an applicant for a money-lender's licence under Section 93, subsection (3), of the Consumer Credit Act, 1995 (as amended) shall be nil;

(iii) the fee payable by an applicant for an authorisation as a mortgage intermediary under Section 116, subsection (4), of the Consumer Credit Act 1995 (as amended) shall be nil.

(b) Paragraph (a) shall not apply to:

(i) Sections 149 or 149A of the Consumer Credit Act 1995 (as amended); or

(ii) the European Communities (Deposit Guarantee Schemes) Regulations, 1995.

(c) Notwithstanding paragraph (a), the Chief Executive may prescribe additional fees pursuant to Section 33K of the Central Bank Act 1942 in respect of matters covered, or required, by the designated enactments or designated statutory instruments and any such fees so prescribed shall be separate from and not included in the contributions payable under these Regulations.

(d) Any monies paid to the Authority by a regulated entity pursuant to any of the instruments or provisions referred to in paragraph (a) after the 1st January 2004 shall stand as a credit towards the amount of required levy contribution payable by that regulated entity.

5. (a) Each regulated entity shall pay to the Authority

(i) an annual contribution (“required levy contribution”) the amount of which is specified in, or calculated in accordance with, the second column of that part of Part B of the Schedule opposite to the applicable category or categories for that regulated entity; and

(ii) if two or more regulated entities are assessed as a complex group pursuant to paragraph (b) of Regulation 6, the amount assessed for payment in accordance with that regulation.

(b) The required levy contribution shall be in respect of the levy period as specified in Part B of the Schedule, and shall be payable not later than the earlier of the date set out in a levy notice (not being less than 28 days from the date of the levy notice) and 16 weeks from the making of these Regulations (“due date”).

(c) The Chief Executive shall determine the appropriate category in the Schedule that shall apply to a regulated entity.

(d) Where in the reasonable opinion of the Chief Executive the obligation of a regulated entity to pay a required levy contribution would be likely to make that regulated entity insolvent, or, where the regulated entity is a sole trader, bankrupt, the Authority may waive the obligation of that regulated entity under these Regulations to pay a required levy contribution.

6. (a) The Authority may send to a regulated entity a notice in writing indicating the required levy contribution assessed by the Authority to be payable by that regulated entity for the levy period.

(b) The Authority may require that two or more regulated entities who form a group of entities shall also be assessed as a “complex group” for the purposes of these Regulations and may include such requirement in the levy notice sent to one or more of such regulated entities. In such a case the Authority may indicate in the levy notice the regulated entity who shall be liable to pay the required levy contribution on behalf of the complex group.

(c) The Authority may require a regulated entity in writing to make an assessment, on the basis of the information in the possession of the regulated entity, of the amount of the required levy contribution to be paid by that regulated entity for the levy period, and to make a return to the Authority of such assessment. The Chief Executive may indicate what information in respect of what periods any required assessment may be based upon. Where a regulated entity is required to make an assessment and return under this paragraph, the assessment and return must be made within such period, not less than 7 days, as the Chief Executive may require, or where a requirement was made before the coming into force of these Regulations, within 7 days from the making of these Regulations.

7. The required levy contributions shall be paid by direct bank transfer or equivalent instantaneous transfer of funds to the bank account specified by the Chief Executive, or in such other manner as the Chief Executive may indicate.

8. (a) A regulated entity who receives a levy notice under paragraph (a) of Regulation 6, may appeal to the Chief Executive, no later than 21 days following the date of a levy notice, to change the amount of the levy assessed for that regulated entity where it considers that the amount assessed is incorrect. Any such appeals must be in writing and shall set out the grounds of the appeal in detail and must be accompanied by the amount of required levy contribution that is not in dispute. Where relevant the appeal should include any supporting documentation or representations.

(b) The Chief Executive, after considering any such appeal, shall advise the appellant in writing of his decision and the reason therefor and, where appropriate, any amount of required levy contribution not already paid shall be payable by the regulated entity to the Authority within 10 days after the notification of the decision to the appellant.

9. Where an amount of required levy contribution becomes payable under these Regulations and is not paid by the due date, simple interest on the amount shall be paid by the regulated entity liable to pay the required levy contribution and such interest shall be calculated from the date on which the amount became payable at the rate for the time being fixed by the Minister for Enterprise, Trade and Employment under Section 10 of the Prompt Payment of Accounts Act 1997 for each day or part of a day during which the amount remains upaid.

10. Every sum payable by a regulated entity under these Regulations, including interest, for or on account of the Authority shall be recoverable by the Chief Executive from that person as a simple contract debt in a court of competent jurisdiction.

11. (a) Each regulated entity shall, and shall in accordance with a direction (if any) as may be given by the Chief Executive, keep full and true records of all transactions which affect their liability under these Regulations and any related returns made.

(b) A record kept by a person pursuant to paragraph (a) and, in the case of any such record that has been given by the person to another person, any copy thereof that is in the power or control of the first-mentioned person shall be retained by that person for a period of 6 years from the date of the last transaction to which the record relates:

Provided that this Regulation shall not apply to records of a company that have been disposed of in accordance with section 305 (1) of the Companies Act 1963 .

(c) No person shall, in purported compliance with a provision of these Regulations provide an answer or explanation, make a statement or produce or deliver any return, certificate, balance sheet or other document which is false in a material particular.

(d) A regulated entity that—

(i) fails to comply with any requirement under these Regulations to make an assessment;

(ii) fails to maintain records in accordance with these Regulations;

(iii) in breach of paragraph (c) of Regulation 11 provides any answer or explanation, or makes a statement or produces or delivers any return, certificate, balance sheet or other document that is false; or

(iv) otherwise fails to comply with a...

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