Chapter VI

Acquiring Transactions

74. —In this Chapter,

“acquiring transactions” shall be construed in accordance with section 75 ;

“prescribed percentage” means 10 per cent. of the total shares or of the total voting rights attaching to shares.

75. —(1) This Chapter applies to the following transactions (in this Part referred to as “acquiring transactions”):

(a) any acquisition by a person or more than one person acting in concert of shares or other interest in a holder of a licence but does not apply to an acquisition where—

(i) if after the proposed acquisition the proportion of shares would not exceed the prescribed percentage, and

(ii) if the holder of the licence concerned is a body incorporated in the State, the acquisition, together with any other interest already held or controlled (either directly or indirectly) by the acquiring person or persons, would not confer a right to appoint or remove some or all of the board of directors or committee of management of the holder of that licence;

(b) any acquisition by the holder of a licence of shares or other interest in any other undertaking or business (whether or not the undertaking or business is controlled by another holder of a licence) but does not apply to an acquisition where either—

(i) the acquisition relates to an undertaking or business outside the State and is made by a holder of a licence which is incorporated outside the State, or

(ii) after such acquisition, the proportion of shares in the undertaking or business concerned would not exceed the prescribed percentage and the acquisition, together with any other interest already held or controlled (either directly or indirectly) by the holder of the licence so acquiring, would not confer a right to appoint or remove some or all of the board of directors or committee of management of that undertaking or business.

(2) The Bank may, subject to such conditions as it sees fit, exempt an acquiring transaction, or any class of acquiring transaction, from the requirements of this Chapter where it is satisfied that—

(a) the acquiring transaction is being, or has been entered into, by a holder of a licence as part of the bona fide underwriting of a share issue, or

(b) the interest in shares is not being beneficially acquired by a holder of a licence or is being acquired only in the course of its normal business to secure the issue of a loan to be made by the holder to the undertaking or business concerned.

76. —An acquiring transaction shall only be valid where it is entered into within 12 months after—

(a) the Bank has given its approval in writing to the transaction, or

(b) the relevant period within the meaning of section 83 has elapsed without the Bank refusing its approval to the transaction,

and, accordingly, any purported acquiring transaction which does not comply with either paragraph (a) or (b) shall be invalid and—

(i) title to any shares or other interest concerned shall not pass, and

(ii) any consequential purported exercise of powers shall be void.

77. —(1) Where—

(a) the holder of a licence proposes to participate in an acquiring transaction and that holder controls, or would control as a consequence of the proposed transaction, whether alone or with any subsidiary or associated company, not less than 20 per cent. of the total assets in the State of all holders of licences, or

(b) a person proposes to participate in an acquiring transaction which involves the acquisition of shares or other interest in a holder of a licence which controls, whether alone or with any subsidiary or associated company, not less than 20 per cent. of the total assets in the State of all holders of licences,

then the Bank shall neither give nor refuse to give its approval without the prior consent of the Minister.

(2) The Minister shall not give his consent under subsection (1) unless—

(a) he is satisfied that the Bank's proposal to give or refuse to give its approval, as the case may be, would be in the interests of the orderly and proper regulation of banking, and

(b) where the proposed acquiring transaction is of such a nature that the provisions of the Mergers, Take-overs and Monopolies (Control) Act, 1978 , apply, he has consulted with—

(i) the Minister for Industry and Commerce, and

(ii) such other Minister of the Government appearing to the Minister to be concerned,

and he shall refuse to give his consent where he considers that the exigencies of the common good so warrant.

(3) A consent by the Minister to a proposal of the Bank to approve a proposed acquiring transaction shall be subject to the imposition by the Bank of conditions (being such conditions, if any, which in the opinion of the Minister are necessary for the orderly and proper regulation of banking) as the Minister may specify in the consent.

78. —(1) Subject to subsection (2), the Bank shall not refuse its approval to a proposed acquiring transaction unless it is satisfied that the transaction would not be in the interests of the orderly and proper regulation of banking.

(2) In the case of a proposed acquiring transaction to which section 77 relates, the Bank shall refuse its approval—

(a) where the proposal of the Bank is to refuse to give its approval and the Minister consents to that proposal, or

(b) where the proposal of the Bank is to give its approval and the Minister refuses to consent to that proposal.

79. —(1) The Minister may, where he is satisfied after consultation with the Bank that it would be in the interest of the orderly and proper regulation of banking, by order amend the definition of “prescribed percentage” in section 74 by altering the percentage amount therein specified including an amount for the time being so specified by virtue of this section.

(2) Whenever an order is proposed to be made under subsection (1) a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

80. —(1) An approval given by the Bank to a proposed acquiring transaction shall be subject to such conditions, if any, as the Bank—

(a) may impose (being conditions which in the opinion of the Bank are necessary for the orderly and proper regulation of banking), and

(b) shall impose (being conditions specified by the Minister under section 77 ).

(2) The Bank may, at any time, amend or revoke a condition with, in the case of a condition to which subsection (1) (b) relates, the consent of the Minister.

81. —Where a purported acquiring transaction is rendered invalid under section 76 , the purported vendor of shares shall be entitled, in any court of competent jurisdiction, to recover from the purported purchaser any damages the purported vendor suffers by reason only of the invalidity, unless the purported purchaser satisfies such court that before the purported transaction he had notified the purported vendor of circumstances relating to the purported transaction which gave rise to the possibility of such an invalidity.

82. —(1) Where an acquiring transaction is proposed, each of the undertakings involved and having knowledge of the existence of the proposal shall notify the Bank in writing of the proposal as soon as may be.

(2) Where, having received a notification under this section from any of the undertakings involved, the Bank is of opinion that in order to consider for the purposes of this Chapter a proposed acquiring transaction it requires further information it may, within one month of the date of receipt by it of a notification, request such further information in writing from any one or more of the undertakings concerned.

(3) (a) Where there is a contravention of subsection (1) the person in control of an undertaking failing to notify the Bank shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both, or

(ii) on conviction on indictment, to a fine not exceeding £50,000 or, at the discretion of the court, to imprisonment for a term not exceeding 5 years, or to both.

(b) For the purposes of this subsection the person in control of the undertaking shall, in the case of an incorporated body or an unincorporated body, be any officer of the body concerned who knowingly and willingly authorises or permits the contravention.

83. —For the purpose of sections 76 , 86 and 88 , the relevant period in relation to a particular acquiring transaction shall, subject to section 86 (2), be—

(a) where the Minister's consent is required by virtue of section 77 to a proposal of the Bank to approve or not to approve the transaction, the period of 6 months, and

(b) in every other case, the period of 3 months,

such period beginning on the date on which the Bank first receives a notification under section 82 or, where the Bank requests further information from an undertaking concerned under section 82 , the date of receipt by the Bank of such information.

84. —(1) The Bank may carry out such inquiries and obtain such information as it considers necessary to enable it to consider the proposed acquiring transaction.

(2) Where the provisions of section 77 apply, the Minister may require the Bank to carry out such inquiries and provide him with such information as he considers necessary to enable him to decide to give or not to give his consent for the purposes of that section.

(3) Any person who wilfully and knowingly impedes the Bank's inquiries under this section or provides false or misleading information shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both, or

(b) on conviction on indictment, to a fine not exceeding £50,000 or, at the discretion of the court, to imprisonment for a term not exceeding 5 years, or to both.

85. —(1) Where the Bank approves or approves subject to conditions or refuses to approve a proposed acquiring transaction, it shall communicate the approval and conditions (if any) or the refusal, as the case may be, to the undertakings concerned which had notified the Bank of the proposal under section 82 and, where such a communication is not in writing, the Bank shall confirm in writing the approval or refusal to approve, as the case may be, as soon as possible thereafter.

(2) Where the Bank refuses to approve the proposed acquiring transaction, it shall state its reasons in writing and, subject to section 16 , shall send them to the persons concerned as soon as possible thereafter.

86. —(1) Where the Bank communicates with an undertaking concerned in accordance with section 85 that it—

(a) refuses to give its approval, or

(b) gives its approval subject to conditions,

an appeal on a point of law may be made by the undertaking to the Court against the refusal or approval, as the case may be, within one month of that refusal or approval being so communicated.

(2) Where the Court allows the appeal it shall direct the Bank to make a new decision in accordance with the Court's determination and the Bank shall make its decision within the relevant period beginning on the date of the Court's determination and, in a case to which section 77 relates, consult with the Minister before making its decision.

(3) Where on an appeal under this section the Minister requests to be made a party to the proceedings, the Court shall order that he shall be added as a party.

(4) Where any costs are incurred by the Minister in connection with an appeal under this section, the Court may make such order as it considers just as to the payment of those costs by other parties to the proceedings.

(5) Where the Court is satisfied, because of the nature or the circumstances of the case or otherwise in the interests of justice, that it is desirable, the whole or any part of proceedings under this section may be heard otherwise than in public.

(6) An appeal against a decision of the Court under this section shall not lie to the Supreme Court.

(7) In this section “the Court” means the High Court.

87. —(1) Where an acquiring transaction is entered into subsequent to approval being given by the Bank, any person who contravenes (whether by act or omission) the approval or any condition of the approval shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both, or

(b) on conviction on indictment, to a fine not exceeding £50,000 or, at the discretion of the court, to imprisonment for a term not exceeding 5 years, or to both.

(2) Where a person is convicted of an offence under this section by reason of his failure, neglect or refusal to comply with a condition of the approval requiring him to perform a specified act within a specified period or before a specified date, and the act remains, after the date of the conviction, unperformed by him, the person shall be guilty of contravening this section on every day on which the contravention continues after that conviction and for each such offence he shall be liable on summary conviction to a fine not exceeding £100 or on conviction on indictment to a fine not exceeding £5,000.

(3) Notwithstanding the paragraph numbered 4 of section 10 of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this section may be instituted within 12 months from—

(a) in the case of an offence to which subsection (1) (a) relates, the latest day on which the offence was committed, and

(b) in the case of an offence to which subsection (2) relates, the day on which the offence was committed.

88. —(1) Nothing in any other enactment shall be construed as relieving a holder of a licence or other person of any obligation of his to comply with section 82 .

(2) An order under section 201 or 203 of the Companies Act, 1963 , in respect of a proposed amalgamation or under section 33 of the Act of 1971 in respect of a proposed transfer of business of a holder of a licence (being in each case an acquiring transaction) shall not be made until the Bank has given its approval to the acquiring transaction or the relevant period referred to in section 83 has elapsed without the Bank having given or refused to give such approval.