I move amendment No. 101:
In page 50, before section 88, to insert the following new section:
"88.-Section 213 of the Act of 1963 is amended-
(a) in paragraph (f), by the insertion after 'company' of ', other than an investment company within the meaning of Part XIII of the Companies Act, 1990, or the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989),', and
(b) by the insertion of the following after paragraph (f):
'(fa) the court is of opinion that it is just and equitable that the company, being an investment company within the meaning aforesaid, should be wound up and the following conditions are complied with-
(i) in the case of an investment company within the meaning of Part XIII of the Companies Act, 1990-
(I) the petition for such winding-up has been presented by the trustee of the company, that is to say, the person nominated by the Central Bank of Ireland under section 257(4)(c) of the Companies Act, 1990, in respect of that company;
(II) the said trustee has notified the investment company of its intention to resign as such trustee and six or more months have elapsed since the giving of that notification without a trustee having been appointed to replace it;
(III) the court, in considering the said petition, has regard to-
(A) any conditions imposed under section 257 of the Companies Act, 1990, in relation to the resignation from office of such a trustee and the replacement of it by another trustee; and
(B) whether a winding-up would best serve the interests of shareholders in the company;
and
(IV) the petition for such winding-up has been served on the company (if any) discharging, in relation to the first-mentioned company, functions of a company referred to in conditions imposed under section 257 of the Companies Act, 1990, as a "management company";
and
(ii) in the case of an investment company within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989, such conditions as the Minister may prescribe by regulations;'.".
Amendments Nos. 101, 102 and 105 relate to investment companies which are provided for in Part VIII of the Companies Act, 1990. Part VIII investment companies are essentially collective investment or mutual funds products which use the company structure provided in the Companies Acts. These products, which are provided for at the behest of the IFSC funds industry and are also available to the domestic funds industry are authorised and regulated by the Central Bank.
Part VIII gives the bank power to apply whatever conditions are necessary to achieve effective regulation. Collective investment products first became available in a meaningful way in 1989 with the introduction of regulations transposing a 1985 EU directive relating to undertakings for the collective investment and transferable securities, or UCITS as they are commonly known. As well as establishing the supervisory regime, the regulations place constraints on the way UCITS can invest their funds, particularly as regards the nature and spread of investments. Following the introduction of the regulations, the IFSC funds industry subsequently identified the need for a UCITS product which could operate outside the UCITS regulations. The specific product identified was an investment company with variable capital and it is this product which is provided for in Part VIII of the 1990 Act.
Amendment No. 105 provides for the disapplication of the prospectus provisions of the 1963 Act in respect of an open ended investment company through an amendment to section 258 of the Companies Act, 1990. Close ended companies are excluded from this amendment as, unlike open ended companies, they are subject to the relevant EU directives and to the provisions in the regulations transposing these directives into Irish law.
Amendment No. 101 provides by way of an amendment to section 213 of the Companies Act, 1963, that the trustee of a Part VIII investment company may apply to the court to have the company wound up in situations where the trustee has notified its intention to resign and a replacement cannot be found.
These amendments also incorporate an enabling amendment to allow similar provisions to apply to UCITS, the details of which will be set out in an amendment to UCITS regulations.
Amendment No. 102 is a consequential amendment to amendment No. 101 and provides for the persons referred to in the amendment of section 213 provided for in amendment No. 101 shall apply for the winding up of an investment company.