Simon Harris (Wicklow, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 49:

In page 75, between lines 20 and 21, to insert the following:

“PART 9
Strike Off and Restoration
Chapter 1
Strike off of ICAV

When Bank may strike ICAV off register
125.(1)Except in the case of an application by an ICAV to be struck off the register of ICAVs, the Bank may strike an ICAV off the register of ICAVs if⁠—
(a)the ICAV is not an authorised ICAV,
(b)there exists one or more of the grounds for striking off set out in section 126, and
(c)the Bank has followed the procedure set out in sections 127, 128, 130and 133(1).
(2)In the case of an application by an ICAV to be struck off the register of ICAVs, the Bank may strike the ICAV off the register of ICAVs if⁠—
(a)the ICAV is not an authorised ICAV,
(b)the conditions for striking off set out in section 131have been satisfied, and
(c)the Bank has followed the procedure set out in sections 132and 133(2).”.

Section 125 of the ICAV Bill, as published, cross-supplied the provisions of the Companies Act to ICAVs. However, on advice, the Minister for Finance has decided to set out the provisions in extensovia Committee Stage amendments. Section 125 will be replaced by a new part which mirrors the provisions on strike-off and restoration for companies as set out in Part 12, Chapters 1 and 2, of the Companies Bill 2012. This new part sets out the circumstances in which an ICAV may be struck from the register and the second group of amendments, which we will get to shortly, deals with the procedures for restoration. It contains provisions concerning both voluntary and involuntary strike-off of an ICAV. In the case of involuntary strike-off, an ICAV may take a remedial step in order to avert the strike-off process. The concept of voluntary strike-off is being placed on a statutory footing with certain conditions being established before the process can commence.

Amendment No. 49 permits either the Central Bank or the ICAV to be struck off the register of ICAVS where it is not an authorised ICAV and the conditions governing voluntary and involuntary strike-offs as set out in subsequent provisions have been fulfilled. This new section is similar to a new provision being introduced by section 726 of the Companies Bill 2012 in respect of the striking-off of companies. Subsection 1 provides that the Central Bank may strike an unauthorised ICAV from the register of ICAVs where one of the grounds for strike-off listed in section 126 exists and the Central Bank has followed the procedure set out in sections 127, 128, 130 and 133(1). Subsection 2 provides that an unauthorised ICAV may apply to be struck off the register of ICAVs where the condition for a voluntary strike-off, pursuant to section 131, have been fulfilled and the Central Bank has followed the requisite procedures set out in sections 132 and 133(2).

Amendment No. 50 provides the grounds upon which an ICAV may be involuntarily struck off the register of ICAVS by the Central Bank as follows: the Central Bank has reasonable cause to believe the ICAV does not comply with section 13 of this Bill which deals with the provisions of registration information by the ICAV; an ICAV not authorised by the UCITS regulation 2011 that has failed to apply for an authorisation pursuant to section 18 of this Bill within 12 months of registration; the ICAV is being wound up and the Central Bank has reasonable cause to believe no liquidator is acting; and the ICAV is being wound up and the Central Bank has reasonable cause to believe the affairs of the ICAV are fully wound up and returns required to be made by the liquidator have not been made for six months.

Amendment No. 51 provides that the Central Bank may notify an ICAV of its intention to strike it from the register of ICAVs, in accordance with the proposed new section 128, on foot of grounds set out in the proposed section 126. This new section is identical to a new provision to be introduced by section 728 of the Companies Bill 2012 and it simplifies the general notice procedure for the strike-off of companies. Subsection 1 provides that the Central Bank may notify an ICAV of its intention to strike it from the register of ICAVs, in accordance with section 128, on foot of grounds set out in section 126.

Amendment No. 52 sets out the required contents of the Central Bank's notice of its intention to strike an ICAV from the register. This new section is similar to section 729 of the Companies Bill 2012.

Amendment No. 53 inserts and lists the remedial steps in respect of the grounds of the strike-off, as listed in section 126, that may be taken by an ICAV for the purpose of sections 128 to 130, inclusive. For example, having been granted authorisation is a remedial step. The new section 129 provides that, depending on the circumstances which led to the strike-off, a remedial step for an ICAV may be complying with section 13 of the Bill, obtaining an authorisation pursuant to section 18, providing details of a liquidator in up-to-date statements or providing notification pursuant to section 65 (6) of the Bill of the appointment of a director. Section 730 of the Companies Bill also provides for this new concept of a remedial step and, as with this section, affords an opportunity to the company to avert the continuation of the strike-off process by doing one of the things listed in the section.

Amendment No. 54 provides that the Central Bank may publish a public notice of its intention to strike the ICAV from the register of companies where no remedial steps have been taken by the ICAV since notification, pursuant to section 127. Amendment No. 55 provides for the conditions to be fulfilled by an ICAV seeking to be voluntarily struck off the register of ICAVs by the Central Bank. Amendment No. 56 obliges the Central Bank to give public notice of its intention to strike an ICAV off the register of ICAVs where it has received a valid application from the ICAV. Amendment No. 57 provides that where the necessary pre-conditions for voluntary and involuntary striking-off of an ICAV have been fulfilled, the Central Bank may strike the ICAV off the register of ICAVs and the ICAV will then be dissolved upon publication of the notice of the strike-off. Amendment No. 58 details the effect of removal from the register on the ICAV, together with its dissolution.

Amendment No. 59 empowers the Central Bank to seek a statement of affairs of the ICAV or such further information from the directors of an ICAV that has been involuntarily struck off. This is identical to a new provision to be introduced by section 736 of the Companies Bill and is in accordance with the recommendations of the company law review group, except for the enforcement powers given to the Office of the Director of Corporate Enforcement. In the original Bill it was intended to deal with the issue of cross-referencing. There are some differences between an ICAV and a company and, therefore, the Minister for Finance, on advice, took the view that was important to set out these processes.