Michael Ahern (Cork East, Fianna Fail)

I move amendment No. 10:

In page 8, between lines 39 and 40, to insert the following:

"10.—The following section is substituted for section 45 of the Act of 2005:

45.—(1) The prohibition in subsection (2) only applies in relation to a prospectus if EU prospectus law requires the inclusion in the prospectus of a statement of the kind referred to in paragraph (b) of that subsection.

(2) A prospectus including a statement that is attributed to an expert shall not be issued unless—

(a) the expert has given and has not, before the publication of the prospectus, withdrawn, in writing, his or her consent to the inclusion in the prospectus of the statement in the form and context in which it is included, and

(b) a statement that the expert has given and not withdrawn, in writing, that consent appears in the prospectus.

(3) If any prospectus is issued in contravention of this section the issuer and every person who is knowingly a party to the issue thereof shall be guilty of an offence and liable to a fine.".".

In recent weeks, a particular difficulty has been raised by a number of legal practitioners who advise clients on the raising of capital through the issue of debentures, which involves the issue of a prospectus.

The problem relates to the way in which the EU prospectus directive, to which I have already referred in the context of previous amendments, was transposed into Irish law through a combination of the Investment Funds, Companies and Miscellaneous Provisions Act 2005, and the separate transposing Regulations, SI 324 of 2005, which were made under section 46 of that Act. The specific problem arises from the requirement in section 45(1) of the Act that, where a prospectus includes a statement made by an expert, that expert has to give his or her consent to the issue of the prospectus, and that consent must not have been withdrawn before the issue of the prospectus.

It has now emerged that this requirement, which was modelled on section 46 of the Companies Act 1963, which itself was repealed as part of the transposition process, goes beyond the requirements of the prospectus directive, which is a maximum harmonisation directive. To address this problem, amendment No. 10 substitutes a new section 45, the essence of which only requires an expert to give his or her consent to the inclusion of the expert's statement in the prospectus.

Due to the way Part 5 of the 2005 Act is structured, it is necessary to make a large number of consequential changes to sections 38, 41, 42, 44 and 48 of the 2005 Act, and these are being made in amendment No. 11. Some of the changes add or substitute new text, some amend existing text, while others repeal text that is now superfluous. They are all designed to reflect the new approach whereby the expert simply consents to the inclusion of his or her statement, as opposed to actually giving consent to the issueof the prospectus, which is the essence of the first amendment to section 45 that I have just described.

I commend these amendments to the House.

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