European Communities (Reorganisation and Winding-up of Credit Institutions) Regulations 2011.

• Jurisdiction: Ireland
• Citation: IR SI 48/2011
• Year: 2011

ARRANGEMENT OF REGULATIONS

Part 1

Preliminary

1. Citation and commencement.

2. Interpretation.

3. Purpose of these Regulations.

4. Credit institutions to which these Regulations apply.

Part 2

Reorganisation measures

5. What law applies to credit institution in respect of which reorganisation measure is imposed.

6. Administrative and judicial authorities of the State to have jurisdiction over reorganisation measures relating to branches of authorised credit institutions.

7. Certain decisions of administrative and judicial authorities of other Member States to be recognised in the State.

8. Administrative and judicial authorities and Bank to provide information with respect to reorganisation measures.

9. Extract relating to reorganisation measure to be published in Official Journal and in national newspapers.

10. Duty to notify known creditors and right to lodge claims.

11. Obligations in respect of credit institution having their head offices outside European Union.

Part 3

Winding-up proceedings

12. What law applies to winding up of credit institution.

13. Administrative and judicial authorities of the State to have jurisdiction over winding-up proceedings relating to branches of authorised credit institutions.

14. Certain decisions of administrative and judicial authorities of other Member States to be recognised in the State.

15. Administrative and judicial authorities and Bank to provide information with respect to winding-up proceedings.

16. Consultation of competent authorities before voluntary winding up.

17. Withdrawal of a credit institution’s authorisation.

18. Liquidator to arrange for publication of decision to wind up authorised credit institution.

19. Liquidator to provide information to certain known creditors of authorised credit institution.

20. Honouring of certain obligations by credit institutions that are neither natural persons or corporations.

21. Who has the right to lodge a claim in respect of authorised credit institution.

22. Formal requirements for certain notices, etc.

23. Liquidator to keep creditors informed about the progress of winding up.

24. Obligations in respect of credit institution whose head office is located outside the Member States.

Part 4

Provisions common to reorganisation measures and winding-up proceedings

25. Effect of reorganisation measure or winding-up proceedings on certain contracts and rights.

26. Reorganisation measure or winding-up proceedings not to affect third parties’ rights in rem.

27. Reorganisation measure or winding-up proceedings not to affect right to reservation of title to asset.

28. Reorganisation measure or winding-up proceedings not to affect right to set-off.

29. Enforcement of certain property rights.

30. Netting agreement to be governed by law of contract.

31. Repurchase agreement to be governed by law of contract.

32. Transactions on regulated market to be governed by law of contract.

33. How appointment of administrators and liquidators is to be proved.

34. Administrator or liquidator of authorised credit institution empowered to exercise powers in other Members States.

35. Administrator or liquidator appointed in other Member State empowered to exercise certain powers within the State.

36. Registration in a public register.

37. Certain Regulations not to apply with respect to application of rules relating to the voidness, voidability or unenforceability of certain legal acts.

38. Validity of certain acts to be governed by law of Member State in which immovable asset located or relevant register, etc., kept.

39. Effect of reorganisation measure or winding-up proceedings on pending legal proceedings relating to credit institution.

40. Persons required to receive or divulge information under these Regulations bound by professional secrecy.

41. Revocation.

S.I. No. 48 of 2011

EUROPEAN COMMUNITIES (REORGANISATION AND WINDING-UP OF CREDIT INSTITUTIONS) REGULATIONS 2011

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 8th February, 2011.

I, BRIAN LENIHAN, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 , and for the purpose of giving effect to Directive 2001/24/EC1 of the European Parliament and of the Council, hereby make the following regulations:

Part 1 Preliminary

Citation and commencement

1. —These Regulations may be cited as the European Communities (Reorganisation and Winding-up of Credit Institutions) Regulations 2011.

Interpretation

2. —(1) In these Regulations, except where the context otherwise requires—

“Act of 2010” means the Credit Institutions (Stabilisation) Act of 2010 (No. 36 of 2010);

“administrative authority” means—

(a) in relation to the State—

(i) the Bank,

(ii) the Minister for Finance, in relation to—

(I) the exercise of the powers and functions of that Minister under the Act of 2010, or

(II) the making of an order under section 33(1) of the Central Bank Act 1971 (No. 24 of 1971) that is expressed as set out in section 33(4) of that Act,

(iii) an administrator, or

(iv) 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 (No. 27 of 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 ,

(b) a building society incorporated or deemed to be incorporated under the Building Societies Act 1989 (No. 17 of 1989), or

(c) a trustee savings bank within the meaning of the Trustee Savings Banks Act 1989 (No. 21 of 1989);

“Bank” means the Central Bank 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;

“Capital Requirements Directive” means Directive 2006/48/EC2 of the European Parliament and of the Council of 14 June 2006;

“Central Bank Acts” means the Central Bank Act 1942 (No. 22 of 1942) and 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 (within the meaning of Article 4(4) of the Capital Requirements Directive) for that other State;

“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 Capital Requirements 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/EC3 of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding-up of credit institutions;

“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 14 of the Capital Requirements Directive and published each year in the Official Journal of the European Union;

“Member State” means a Member State of the European Union;

“Official Assignee” has the meaning given by section 3 of the Bankruptcy Act 1988 (No. 27 of 1988);

“regulated market” has the same meaning as in the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60 of 2007 );

“relevant applicable enactment” has the meaning given by paragraph (4);

“reorganisation measure” shall be construed in accordance with paragraph (2);

“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 (No. 33 of 1963),

(ii) the appointment of a provisional liquidator under section 226 of that Act,

(iii) the appointment of a liquidator under section 225 of that Act,

(iv) the passing of a resolution for a voluntary winding-up under section 251 of that Act,

(v) the appointment of a liquidator...