1. Overview

  1. This Implementation Notice sets out the Central Bank of Ireland's (Central Bank's) requirements and guidance in relation to the implementation of certain competent authority discretions arising under:
    • S.I. No. 355 of 2021, European Union (Investment Firms) Regulations 2021 (the IFD Regulations) transposing Directive (EU) 2019/2034 on the prudential supervision of investment firms (the IFD)1 into Irish law;
    • Regulation (EU) 2019/2033 on the prudential requirements of investment firms (the IFR)2 and S.I. No 356 of 2021, European Union (Investment Firms) (No. 2) Regulations 2021 (the IFR Regulations).

    For the avoidance of doubt, the Central Bank considers a discretion broadly to refer to a situation in which competent authorities are given a choice whether to apply or not to apply a given provision in EU legislation.

    This Implementation Notice does not address Member State discretions save those whose exercise has been delegated to the Central Bank by the IFD Regulations.


  3. This Implementation Notice may be periodically updated or amended by the Central Bank.
  4. References to Irish and EU legislation in this Implementation Notice should be read as a citation of, or reference to, the legislation as amended from time-to-time (including as amended by way of extension, application, adaptation, replacement or other modification of the legislation). References to draft EU legislation should be read as a citation of, or reference to, the legislation as ultimately adopted once the legislative process is complete. References to Central Bank, European Banking Authority (EBA) and European Securities and Markets Authority (ESMA) guidelines in this Implementation Notice should, if they have since been amended or replaced since the issuance of this Implementation Notice, be construed as references to the relevant amended or replacing guidelines.
  5. This Implementation Notice is not an exhaustive account of the IFD Regulations, the IFR Regulations, the IFD or the IFR and should not be interpreted as such. For further information, and avoidance of doubt, stakeholders should consult the applicable legal texts and/or relevant European Commission or EBA websites directly.

Legal Basis for this Notice

  1. The IFD and IFR were published in the Official Journal of the European Union on 5 December 2019 and entered into force on 25 December 2019. The IFD and the IFR are generally applicable from 26 June 20213.
  2. The IFD, as an EU Directive, was transposed into Irish law by the IFD Regulations. The IFR, as an EU Regulation, became directly applicable from 26 June 2021 and did not necessitate transposition.
  3. Under Regulation 5(1) of the IFD Regulations the Central Bank is designated as the national competent authority (NCA) that carries out the functions and duties of the competent authority in IFD and IFR.
  4. The Central Bank's Consultation Paper on Competent Authority Discretions in the IFD and the IFR (CP135) signalled the Central Bank's proposed approach and perspectives in relation to provisions contained within the IFD Regulations and the IFR where the competent authority can or must exercise its discretion.
  5. As set out in the Feedback Statement to CP 135 the Central Bank has taken note of key points of concern identified in responses to this consultation and has provided further guidance on its proposed approach where necessary in the drafting of this Implementation Notice.

Footnotes

1 Directive (EU) 2019/2034 of the European Parliament and of the Council of 27 November 2019 on the prudential supervision of investment firms and amending Directives 2002/87/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU, 2014/59/EU and 2014/65/EU.

2 Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019 on the prudential requirements of investment firms and amending Regulations (EU) No 1093/2010, (EU) No 575/2013, (EU) No 600/2014 and (EU) No 806/2014.

3 Certain measures are applicable pre-26 June 2021:

• Point 6 of Article 62 of the IFD as regards Article 8a(3) of the CRDIV is applicable by 27 December 2020;

• Point (5) of Article 64 of the IFD applies from 26 March 2020;

• Points (2) and (3) of Article 63 of the IFR apply from 26 March 2020; and

• Points (30), (32) and (33) of Article 62 of the IFR apply from 25 December 2019.

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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.