European Union (Prospectus) Regulations 2019

• Jurisdiction: Ireland
• Year: 2019
• Citation: IR SI 380/2019

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 30th July, 2019.

CONTENTS

Part 1 PRELIMINARY 1. Citation and commencement 2. Interpretation 3. Exemption from obligation to publish prospectus Part 2 BANK AS COMPETENT AUTHORITY 4. Designation of Bank as competent authority 5. Delegation of functions of Bank 6. Liability of Bank and other bodies 7. Decisions of Bank Part 3 POWERS OF BANK 8. Powers of Bank 9. Consultation with market operators 10. Advertising 11. Directions by Bank Part 4 AUTHORISED OFFICERS AND RELATED MATTERS 12. Definitions – Part 4 13. Power to appoint authorised officers 14. Powers of authorised officers 15. Warrants Part 5 ENFORCEMENT Chapter 1 Definitions 16. Definitions – Part 5 Chapter 2 Assessment 17. Appointment of assessor 18. Revocation of appointment of assessor 19. Power to require witnesses to appear and give evidence 20. Referral to Court on question of law 21. Issue of assessments 22. Power to correct assessments 23. Right of appeal against adverse assessment (including specified sanctions) Chapter 3 Sanctions 24. Sanctions that may be imposed 25. Determination of appropriate sanction 26. When specified sanctions take effect 27. Enforcement of adverse assessment (including specified sanctions) 28. Publication of decisions 29. Person not liable to be penalised twice for same contravention 30. Disqualification: obligation on regulated financial service provider Chapter 4 Resolution of Contraventions 31. Power of Bank to resolve suspected contraventions Chapter 5 Offences 32. False etc. information 33. Certain offences and penalties generally Chapter 6 Reporting of Contraventions 34. Reporting of contraventions Part 6 MISCELLANEOUS PROVISIONS 35. Responsibility attaching to prospectus 36. Use of language 37. Fees 38. Revocations 39. Amendment of Act of 1942 40. Amendment of Act of 2014 SCHEDULE Responsible Persons

I, PASCHAL DONOHOE, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving further effect to Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 20171 , hereby make the following regulations:

Part 1

PRELIMINARY

Citation and commencement

1. (1) These Regulations may be cited as the European Union (Prospectus) Regulations 2019.

(2) These Regulations shall come into operation on 21 July 2019.

Interpretation

2. (1) In these Regulations—

“Act of 1942” means the Central Bank Act 1942 (No. 22 of 1942);

“Act of 2014” means the Companies Act 2014 (No. 38 of 2014);

“Bank” means the Central Bank of Ireland;

“contravention” includes, in relation to any provision, a failure to comply with that provision, and also includes—

(a) attempting to commit a contravention,

(b) aiding, abetting, counselling or procuring a person to commit a contravention,

(c) inducing, or attempting to induce, a person (whether by threats or promises or otherwise) to commit a contravention,

(d) being (directly or indirectly) knowingly concerned in, or a party to, a contravention, and

(e) conspiring with others to commit a contravention;

“Court” means the High Court;

“delegated act” means a delegated act, for the time being in force, adopted by the Commission of the European Union in accordance with Article 44 of the Prospectus Regulation;

“enactment” has the same meaning as it has in the Interpretation Act 2005 (No. 23 of 2005);

“EU prospectus law” means—

(a) the Prospectus Regulation, and

(b) the delegated acts;

“General Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 20162 ;

“market operator” means one or more persons who manage or operate the business of a regulated market (or who do both those things), and may be the regulated market itself;

“Minister” means the Minister for Finance;

“prescribed contravention” means a contravention of—

(a) a provision referred to in Article 38(1) of the Prospectus Regulation, or

(b) Regulation 30;

“Prospectus Regulation” means Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 20171;

“regulated financial service provider” has the same meaning as it has in the Act of 1942;

“relevant person” means an issuer, offeror or person seeking admission to trading, as the case may be.

(2) A word or expression which is used in these Regulations and is also used in the Prospectus Regulation has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Prospectus Regulation.

Exemption from obligation to publish prospectus

3. (1) Without prejudice to Articles 1(4) and 4 of the Prospectus Regulation, the obligation to publish a prospectus under Article 3 of the Prospectus Regulation shall not apply to an offer of securities to the public in the State where—

(a) the offer is not subject to notification in accordance with Article 25 of the Prospectus Regulation, and

(b) the total consideration for the offer does not exceed €5,000,000.

(2) For the purposes of paragraph (1)(b), the total consideration for an offer is the aggregate of the total consideration for that offer and the total consideration for all previous offers of securities of the same type in the issuer concerned made by the same offeror or issuer within the period of 12 months expiring on the date the offer is made.

Part 2

BANK AS COMPETENT AUTHORITY

Designation of Bank as competent authority

4. The Bank is designated as the competent authority in the State responsible for carrying out the functions of a competent authority referred to in the Prospectus Regulation.

Delegation of functions of Bank

5. (1) The Bank may delegate, by means of a decision that complies with the requirements specified in paragraph (2), the task of electronic publication of approved prospectuses and related documents to a third party.

(2) A decision referred to in paragraph (1) shall—

(a) specify the tasks to be carried out under the delegation,

(b) specify the conditions in accordance with which the tasks are to be carried out,

(c) require the third party concerned—

(i) to act and be organised in such a manner as to avoid conflicts of interest, and

(ii) to ensure that information obtained while carrying out the delegated tasks is not used unfairly or to prevent competition, and

(d) specify the arrangements entered into between the Bank and the third party concerned.

(3) Where the Bank delegates a function under paragraph (1), the function so delegated shall, notwithstanding the delegation, continue to be vested in the Bank but shall be so vested concurrently with the third party concerned and so as to be capable of being performed by either the Bank or the third party.

(4) Where the Bank delegates a function under paragraph (1), the Bank shall notify the Minister promptly in writing of the delegation and the conditions in accordance with which the function delegated is to be carried out.

Liability of Bank and other bodies

6. Without prejudice to the generality of section 33AJ of the Act of 1942, approval of a prospectus by the Bank shall not be deemed to be or construed as a representation or warranty as to the solvency or credit-worthiness of the issuer of the prospectus or the truth or accuracy of the contents of the prospectus.

Decisions of Bank

7. (1) A decision taken by the Bank under the Prospectus Regulation or these Regulations shall be properly reasoned.

(2) A decision taken by the Bank under the Prospectus Regulation or these Regulations is an appealable decision for the purpose of Part VIIA of the Act of 1942.

(3) The reference in paragraph (2) to a decision includes a case in which the circumstances described in the second paragraph of Article 40 of the Prospectus Regulation apply.

Part 3

POWERS OF BANK

Powers of Bank

8. (1) The Bank shall have the powers specified in points (a) to (n) of Article 32(1) of the Prospectus Regulation.

(2) The Bank shall not exercise the powers referred to in paragraph (1) in a manner or for a purpose inconsistent with the Bank’s obligations pursuant to the Prospectus Regulation or these Regulations.

(3) The powers of the Bank referred to in in paragraph (1) are without prejudice to the powers of the Bank under any other provision of these Regulations, the Prospectus Regulation or any other enactment.

Consultation with market operators

9. Without prejudice to its powers under Regulations 11 and 19, the Bank may consult with market operators if, in the Bank’s opinion, it is necessary to do so for the purposes of exercising its powers under the Prospectus Regulation or these Regulations.

Advertising

10. (1) The Bank may, for the purpose of exercising control over the compliance of advertising activity, relating to an offer of securities to the public or an admission to trading on a regulated market, with paragraphs 2 to 4 of Article 22 of the Prospectus Regulation, give a direction to a relevant person to do or not to do such things as are necessary to ensure compliance with those paragraphs.

(2) Without prejudice to the generality of paragraph (1), a direction under that paragraph may do all or any of the following:

(a) prohibit the issue of a specified advertisement;

(b) require the relevant person to modify a specified advertisement or an advertisement of a specified description in a specified manner;

(c) prohibit the issue by the person of any advertisements which are substantial repetitions of a specified advertisement;

(d) require the relevant person to withdraw any specified...