PART 3

Transparency Requirements Regarding Issuers of Securities Admitted to Trading on Certain Markets

19 .— (1) In this Part—

“ Transparency (Regulated Markets) Directive ” means Directive 2004/109/EC ¹ of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC, including the first-mentioned Directive as it stands amended for the time being;

“ transparency (regulated markets) law ” means—

(a) the measures adopted for the time being by the State to implement the Transparency (Regulated Markets) Directive and any supplemental Directive (whether an Act of the Oireachtas, regulations under section 3 of the European Communities Act 1972 , regulations under section 20 or any other enactment (other than, save where the context otherwise admits, this Part)),

(b) any measures directly applicable in the State in consequence of the Transparency (Regulated Markets) Directive and, without prejudice to the generality of this paragraph, includes any Regulation or Decision made by the Commission pursuant to the procedure referred to in Article 27(2) of that Directive, and

(c) any supplementary and consequential measures adopted for the time being by the State in respect of any Regulation or Decision made by the Commission in consequence of the Transparency (Regulated Markets) Directive pursuant to the foregoing procedure;

“ supplemental Directive ” means any Directive made by the Commission in consequence of the Transparency (Regulated Markets) Directive pursuant to the procedure referred to in Article 27(2) of that Directive.

(2) A word or expression that is used in this Part and is also used in the Transparency (Regulated Markets) Directive shall have in this Part the same meaning as it has in that Directive.

20 .— (1) The Minister may make regulations for the purposes of—

(a) giving effect to the Transparency (Regulated Markets) Directive or any supplemental Directive, and

(b) supplementing and making consequential provision in respect of any Regulation or Decision made by the Commission in consequence of the first-mentioned Directive in paragraph (a) pursuant to the procedure referred to in Article 27(2) of that Directive.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of those regulations, including—

(a) provisions creating offences (but the regulations may only provide penalties in respect of a summary conviction for any such offence), and

(b) provisions creating civil liability in respect of contraventions of the regulations so as to enable any person suffering loss thereby to recover compensation for that loss.

(3) Civil liability shall not be created by regulations under subsection (2) in respect of a contravention of regulations under this section save in respect of such a contravention that involves either—

(a) an untrue or misleading statement, or

(b) the omission from a statement of any matter required to be included in it,

being, in either case, a statement—

(i) that is contained in a publication made in purported compliance with a provision of transparency (regulated markets) law specified in the regulations, and

(ii) in respect of which a person suffers a loss by reason of the person’s acquiring or contracting to acquire securities (or an interest in them) in reliance on that publication at a time when, and in circumstances in which, it was reasonable for the person to rely on that publication,

and the following condition is fulfilled in respect of that publication.

(4) That condition is that a person discharging responsibilities within the issuer of the securities referred to in subsection (3) in relation to that publication (being responsibilities of a kind specified in regulations under this section)—

(a) knew the statement concerned to be untrue or misleading or was reckless as to whether it was untrue or misleading, or

(b) knew the omission concerned to be dishonest concealment of a material fact.

(5) Regulations under this section may also make, for the purposes of those regulations, provision analogous to that which is made by Part IV of the Act of 1990.

(6) This section is without prejudice to section 3 of the European Communities Act 1972 .

21 .— A person who is guilty of an offence created by transparency (regulated markets) law (being an offence expressed by that law to be an offence to which this section applies) shall, without prejudice to any penalties provided by that law in respect of a summary conviction for the offence, be liable, on conviction on indictment, to a fine not exceeding €1,000,000 or imprisonment for a term not exceeding 5 years or both.

22 .— (1) In this section “ competent authority” means the competent authority designated under transparency (regulated markets) law for the purposes of the provisions of the Transparency (Regulated Markets) Directive (other than Article 24(4)(h) of that Directive).

(2) The competent authority may make rules imposing or enabling the competent authority to impose requirements on persons on whom an obligation or obligations are imposed by transparency (regulated markets) law, being requirements—

(a) to do or not to do specified things so as to secure that the provisions of transparency (regulated markets) law are complied with and, in particular (without limiting the generality of this paragraph), to adopt specified procedures and use specified forms in the provision of information to the competent authority,

(b) to do or not to do specified things so as to secure the effective supervision by the competent authority of activities of the kind to which transparency (regulated markets) law relates and, in particular (without limiting the generality of this paragraph), to make such reports or disclose such matters, at such times and in such manner, to the competent authority or other specified persons as are provided for by the rules or specified by the competent authority pursuant to the rules, being reports or a disclosure of matters that is or are required by virtue or in consequence of the operation of transparency (regulated markets) law.

(3) Rules under this section may, in particular, include rules necessary for the performance by the competent authority of the functions under Article 24 of the Transparency (Regulated Markets) Directive, other than paragraph (4)(h) of that Article.

(4) Rules under this section may contain such consequential, incidental or supplemental provisions as the competent authority considers necessary or expedient.

(5) Rules under this section shall not contain any provision that is inconsistent with transparency (regulated markets) law or require the provision of information to any person the provision of which is not reasonably related to the purposes for which the applicable provisions of the Transparency (Regulated Markets) Directive have been adopted.

(6) The provisions of transparency (regulated markets) law that are expressed by that law to be made for the purpose of enabling the imposition of administrative sanctions shall apply in relation to a contravention of—

(a) rules under this section, and

(b) rules adopted by the Irish Auditing and Accounting Supervisory Authority under section 10(3) of the Companies (Auditing and Accounting) Act 2003 concerning the matters that relate to its functions under section 9(2)(ma) of that Act,

as they apply in relation to a contravention of a provision of transparency (regulated markets) law and, accordingly, a sanction that may be imposed pursuant to the first-mentioned provisions of transparency (regulated markets) law in respect of a contravention of a provision of that law may, in accordance with that law, be imposed in respect of a contravention of rules referred to in either of the foregoing paragraphs.

(7) The competent authority may issue guidelines in writing as to the steps that may be taken to comply with transparency (regulated markets) law.

23 .— The definition of “Supervisory Directives” in subsection (10) of section 33AK (inserted by the Central Bank and Financial Services Authority of Ireland Act 2003 ) of the Central Bank Act 1942 is amended by substituting the following paragraphs for paragraph (h) (inserted by the Act of 2005):

“(h) the 2003 Prospectus Directive (within the meaning of Part 5 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 ),

(i) the Transparency (Regulated Markets) Directive (within the meaning of Part 3 of the Investment Funds, Companies and Miscellaneous Provisions Act 2006);”.

24 .— (1) The Minister, after consultation with the competent authority referred to in section 22 (1), may, by provisional order, provide that one or more provisions of transparency (regulated markets) law that apply in relation to a market to which the Transparency (Regulated Markets) Directive applies shall, with such modifications, if any, as are specified in the order, apply to a market specified in the order.

(2) A provisional order under this section shall not have effect unless or until it is confirmed by an Act of the Oireachtas.

¹OJ L390, 31.12.2004, p.38