Ireland: RegBrief (September – October 2016)

Last Updated: 17 November 2016
Article by Orla O'Connor, Robert Cain and Maedhbh Clancy


AML Update: Department of Finance publishes National Risk Assessment for Ireland The publication by the Department of Finance of the first National Risk Assessment for Ireland (Money Laundering and Terrorist Financing) in conjunction with the Department of Justice and Equality.
Brexit Update An update on the expected timeline for Brexit, and recent speeches given by the Central Bank on the implications of Brexit on the Central Bank's role.
Brexit – UK Government cannot serve Article 50 notice without Parliament's approval The decision of the High Court of England and Wales on 3 November 2016 that the UK Government needs the approval of the UK Parliament before the Article 50 notice can be served to trigger Brexit negotiations.
Credit Reporting Update Vol 2/2016 The publication of credit reporting regulations by the Central Bank, and the start dates for data reporting by in-scope lenders.
Loan Sales - Important Judgment in relation to Registered Land The July 2016 High Court case in which an interlocutory injunction was granted restraining a receiver from taking possession of certain registered properties.
Payment Accounts: Fees, Access and Account Switching – New rules become law in Ireland The transposition of the Payment Accounts Directive into Irish law, the consultations launched by the European Banking Authority (EBA) and the publication of the Central Bank's new Account Switching Code.
Possession Proceedings for Irish Residential Properties The Court of Appeal decision that the Circuit Court does not have jurisdiction to hear possession proceedings in relation to non-rateable residential properties which are neither principal private residences nor housing loan mortgages. The Government has since published the Courts Bill 2016 (and Explanatory Memorandum) which is designed to deal with the consequences of this Court of Appeal ruling.
Resolving the Mortgage Arrears Crisis Vol 3/2016 Recent cases, developments and trends relevant to ongoing efforts to resolve the mortgage arrears crisis.

1. AML

High Risk Third Countries

Commission Delegated Regulation (EU) 2016/1675 has been published in the Official Journal. It relates to the Fourth Money Laundering Directive (MLD4) and identifies high-risk third countries with strategic deficiencies in the areas of anti-money laundering and counter-terrorist financing (Afghanistan, Bosnia and Herzegovina, Guyana, Iran, Iraq, Lao PDR, North Korea, Syria, Uganda, Vanuatu and Yemen).

MLD4 and MLD5

In our July 2016 Client Briefing, we covered the European Commission's proposal (known as MLD5) to bring forward the transposition date for MLD4 to January 2017 and to make certain other amendments to MLD4 regarding virtual currencies and beneficial ownership. The European Central Bank (ECB) has issued a press release and opinion on the proposals in respect of virtual currencies and registers (but not on the proposed earlier transposition date) and the EU Council has also published its compromise proposal in respect of MLD5, suggesting (among other changes) that MLD4 still be transposed in June 2017 (rather than in January 2017), and that the other MLD5 changes be introduced at the same time. It now appears very unlikely that the proposal to transpose MLD4 in January 2017 will become a reality.


Central Bank Q&A

On 12 September, the Central Bank published its AIFMD - Questions and Answers - 20th Edition, adding questions in relation to umbrella cash accounts.


ESMA has also issued its updated AIFMD Q&A to include a new question on the commencement of periodical reporting under Article 13 of the Securities Financing Transactions Regulation (SFTR) for alternative investment fund managers (AIFMs).

AIFMD Passport

On 11 October 2016, Steven Maijoor, the ESMA Chair, gave a speech to the European Parliament's Economic and Monetary Affairs Committee regarding ESMA's advice on the application of the passport to non-EU AIFMs and alternative investment funds under the AIFMD. In his statement, Mr Maijoor explains that ESMA's current focus is on:

  • assessing Bermuda and the Cayman Islands with a view to deciding whether to extend the passport to those countries;
  • beginning an assessment of an additional group of non-EU countries when it has more clarity on the next steps envisaged by co-legislators; and
  • putting in place a framework in case the passport is extended to one or more non-EU countries.


Commission Communication

The Commission has issued a communication on accelerating reform under its CMU project, together with a Q&A and an Implementation Timetable. Notably, the Commission wants the European Parliament to progress related securitisation reforms urgently. The Commission is also keen for agreement to be reached on the proposed new prospectus regulation (PD3) by the end of 2016.

Central Bank View

In a recent speech on The European Financial System After Brexit, the Central Bank's Governor, Philip Lane, noted that the CMU agenda had taken on "greater urgency" in light of Brexit, but that if progress is to be made, "considerable commitment" will be required from policymakers.

Read the full briefing here.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

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