European Communities (Reorganisation and Winding-Up of Credit Institutions) Regulations, 2004

• Jurisdiction: Ireland
• Year: 2004
• Citation: IR SI 198/2004

I, CHARLIE McCREEVY, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), as amended by the European Communities (Amendment) Act 1993 (No. 25 of 1993), and for the purpose of giving effect to Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001, hereby make the following regulations:
PART 1 Preliminary Provisions
	Citation and commencement	1. (1) These Regulations may be cited as the European Communities (Reorganisation and Winding-up of Credit Institutions) Regulations 2004.
(2) These Regulations come into operation on 5 May 2004.
	Interpretation	2. (1) In these Regulations, except where the context otherwise requires—
“administrative authority” means—
(a) in relation to the State;
(i) the Bank, or
(ii) an administrator, or
(iii) a liquidator, and
(b) in relation to another Member State, any administrative authority that has, under the law of that State, responsibility for supervising or regulating reorganisation measures or winding-up proceedings;
“administrator”—
(a) in relation to an authorised credit institution, means an examiner appointed in respect of the institution under section 2 of the Companies (Amendment) Act 1990 , or
(b) in relation to a credit institution established in another Member State, means any person or body appointed by an administrative or judicial authority of that other Member State for the purpose of administering reorganisation measures;
“another Member State” means a Member State, other than the State;
“authorised credit institution” means—
(a) the holder of a licence under section 9 of the Central Bank Act 1971 , or
(b) a building society incorporated or deemed to be incorporated under the Building Societies Act 1989 , or
(c) a trustee savings bank within the meaning of the Trustee Savings Banks Act 1989 ;
“Bank” means the Central Bank and Financial Services Authority of Ireland;
“branch” means a place of business that forms a legally dependent part of a credit institution and carries out directly all or some of the transactions inherent in the business of credit institutions;
“Central Bank Acts” means the Central Bank Act 1942 as amended from time to time, and includes every enactment that is to be construed as one with that Act;
“the Codified Directive” means Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000, as amended from time to time;
“Companies Acts” means the Companies Act 1963 as amended from time to time, and includes every enactment that is to be construed as one with that Act;
“competent authority” means—
(a) in relation to the State, the Bank, and
(b) in relation to another Member State, the competent authority for that other State, within the meaning of Article 1(4) of the Codified Directive;
“the Court” means the High Court;
“credit institution” (when not qualified by “authorised”) means—
(a) an authorised credit institution, or
(b) a credit institution, as defined in the Codified Banking Directive, that is authorised by a competent authority of another State for the purposes of that Directive;
“creditor” includes a contingent creditor and a prospective creditor;
“the Directive” means Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding-up of credit institutions (published in the Official Journal L 125, 05/05/2001, P. 0015-0023);
“judicial authority” means—
(a) in relation to the State, the Court, and
(b) in relation to another Member State, any court or other judicial authority that has jurisdiction to deal with reorganisation measures or winding-up proceedings in that other State;
“laws” includes enactments, regulations, orders, guidelines and codes of practice;
“liquidator” means—
(a) in relation to an authorised credit institution, a liquidator or provisional liquidator appointed under the relevant applicable enactment in respect of an authorised credit institution, or
(b) in relation to a credit institution authorised in another Member State, any person or body appointed by an administrative or judicial authority of the other Member State, or by the governing body of a credit institution authorised in that other State, for the purpose of winding up the institution;
“listed branch”, in relation to a credit institution, means a branch of the institution that is included in the list referred to in Article 11 of Directive 2000/12/EC and published each year in the Official Journal of the European Communities;
“Member State” means a Member State of the European Communities;
“Official Assignee” has the meaning given by section 3 of the Bankruptcy Act 1988 ;
“regulated market” means a regulated market within the meaning of Article 1(13) of Directive 93/22/EEC;
“relevant applicable enactment” has the meaning given by paragraph (2);
“reorganisation measure”, in relation to a credit institution, means a measure that is intended to preserve or restore the institution’s financial position, but that could affect the rights of third parties existing before the measure is imposed in respect of the institution, and includes any measure that contemplates the possibility of—
(a) payments being suspended by the institution, or
(b) enforcement measures being suspended in relation to the institution, or
(c) claims against the institution being reduced,
and, in particular, includes any of the following:
(d) a scheme of arrangement under section 201 of the Companies Act 1963 ;
(e) the appointment of an examiner under section 2 of the Companies (Amendment) Act 1990 ;
(f) a court order made under section 3A of the Companies (Amendment) Act 1990 placing the institution under the protection of the court for a period pending the submission of an independent accountant’s report;
(g) a direction given to the institution under section 21 of the Central Bank Act 1971 , section 26 of the Trustee Savings Bank Act 1989 or section 40 of the Building Societies Act 1989 to suspend—
(i) carrying on banking business, or
(ii) making payments to which the carrying on of banking business does not relate, or
(iii) acquiring or disposing of other assets or liabilities, except with the authorisation of the Bank, or
(h) a direction under section 20 or 21 of the Asset Covered Securities Act 2001 prohibiting the institution from carrying on a specified activity except with the permission of the Bank;
“winding-up proceedings”—
(a) in relation to an authorised credit institution, means collective proceedings commenced and monitored by or before an administrative or judicial authority of the State for the purposes of realising assets under the supervision of that authority, and includes any such proceedings that are terminated by a composition of creditors or other similar arrangement, and, in particular, includes—
(i) a winding-up order made under section 213 of the Companies Act 1963 , and
(ii) the appointment of a provisional liquidator under section 226 of that Act, and
(iii) the appointment of a liquidator under section 225 of that Act, and
(iv) the passing of a resolution for a voluntary winding-up under section 251 of that Act, and
(v) the appointment of a liquidator in a creditors’ voluntary winding-up under section 267 of that Act, and
(vi) an arrangement under the control of the Court that involves the vesting of all or part of the property of the institution in the Official Assignee for realisation and distribution, and
(b) in relation to a credit institution authorised in another Member State, means collective proceedings commenced and monitored by or before an administrative or judicial authority of the other State for the purposes of realising assets under the supervision of that authority, and includes any such proceedings that are terminated by a composition of creditors or other similar arrangement.
(2) In relation to the winding up of an authorised credit institution, such of the following enactments as is relevant to the institution in the particular context is the relevant applicable enactment for the purposes of these Regulations:
(a) the Companies Acts;
(b) the Central Bank Acts;
(c) the Trustee Savings Bank Act 1989;
(d) the Building Societies Act 1989 ;
(e) the Asset Covered Securities Act 2001 .
(3) If a credit institution that has its head office in a Member State has established a number of places of business in another Member State, those places of business are, for the purposes of these Regulations, to be regarded as a single branch.
(4) A word or expression that is used in these Regulations and also in the Directive has, unless the context otherwise requires or these Regulations otherwise provide, the same meaning in these Regulations as it has in the Directive.
(5) In these Regulations, unless the context otherwise requires—
(a) a reference to a Regulation is a reference to a Regulation of these Regulations, and
(b) a reference to a paragraph, subparagraph or clause is a reference to a paragraph, subparagraph or clause of the provision in which the reference occurs, and
(c) a reference to a specified enactment or regulation is a reference to the enactment or regulation as amended by or under any subsequent enactment or regulation, including a Regulation of these Regulations.
(6) These Regulations have effect, despite any other law to the contrary, whether that other law is enacted or made before or after the making of these Regulations.
	Purpose of these Regulations	3. The purpose of these Regulations is to give effect to the Directive.
	Credit institutions to which these Regulations apply	4. (1) Except as provided by Regulations 11 and 24, these Regulations apply only to—
(a) credit institutions whose head offices are located in Member States, and
(b) the branches of those institutions...