Administrative Sanctions Procedure: Feedback Statement & Guidelines Published
Following its consultation on changes to the Administrative Sanctions Procedure (the “ASP”), the Central Bank of Ireland (“CBI”) has published a Feedback Statement and new Guidelines (the “Guidelines”) on the ASP which came into effect on 13 December 2023.
The Guidelines consolidate and replace the CBI’s existing guidance documents (the ASP Outline 2018, the Inquiry Guidelines 2014 and the ASP Sanctions Guidance 2019) and reflect certain changes to the CBI’s ASP introduced under the Central Bank (Individual Accountability Framework) Act 2023 (“Act“) as well as feedback provided during the consultation process.
The Feedback Statement clarifies the practical operation of aspects of the Guidelines and explains certain amendments reflected in the Guidelines following consultation.
A summary of key amendments reflected in the Guidelines is set out below.
- Responsible Authority Officer: The Guidelines have been updated to include further detail on the role and responsibilities of the responsible authorised officer.
- Confidential Information: The CBI acknowledge that a recipient may legitimately need to disclose confidential information to another person and even if not required by law or to a legal advisor, the CBI will authorise a disclosure of information from a recipient to another person when it is considered reasonably necessary to do so. The CBI will deal with requests for such disclosure in a timely manner.
- Timeframe for Responses: The Guidelines have been amended to clarify that the response timeframe will be set by the responsible authorised officer following consideration of matters such as the complexity of issues, the contents of the draft investigation report, the period necessary to give the subject a fair opportunity to respond, and the timely progression of the investigation report process.
- Use of Information by the CBI: The Guidelines have been amended to provide examples of how information gathered by the CBI during an investigation may be used by them in the performance of any of its statutory functions. In the Feedback Statement, the CBI state that they will only use the information if it is “relevant and fair to do so”.
- Legal Professional Privilege: The Guidelines have been amended to clarify that entry into a disclosure agreement by the subject of an investigation is entirely voluntary. The Guidelines have also been amended to provide that a disclosure agreement will include a provision confirming that the CBI can utilise the disclosed material for the performance of its statutory functions and for any other purpose specified in the agreement.
- Publication of the Detail of the Notice of Inquiry: The CBI has amended the Guidelines to state that it is expected that the inquiry members will issue a public notice where an inquiry concludes, and a finding is made that no prescribed contravention has been found to be committed.
- Appointment of Inquiry Members: The CBI has amended the Guidelines to clarify that a sole inquiry member does not need to be legally qualified. Inquiry members will be named in the communication from the CBI Regulatory Decisions Unit to inquiry participants confirming the appointment of inquiry members. The notice on the CBI website confirming that an inquiry has commenced will also identify the inquiry members who have been appointed.
- Conflicts of Interest: The Guidelines have been amended to provide additional information on the management of conflicts of interest in respect of inquiry members at the appointment stage and throughout the inquiry process.
- Undisputed Facts Settlement and Investigation Report Settlements: The Guidelines have been amended to clarify the operation of the new settlement processes.
- Public Statements: The Guidelines clarify that the CBI commentary is not limited to the market aspects of a case and is relevant to the wider public.
- Information on calculation of penalty: The Guidelines have been amended to clarify that, both firms and individuals will be given information on how a proposed monetary penalty has been calculated. This information will “generally” include the “basis for the starting point”. The firm or individual will be able to engage with the CBI regarding sanctions as part of a settlement or inquiry process.
- Submissions: The Guidelines have been amended to reflect the entitlement of a subject to make submissions on sanctions as part of the settlement process.
- Directions Imposing Conditions or Disqualification as a Sanction: The Guidelines have been amended to provide detail on both directions imposing conditions and disqualification as a sanction. Examples of potential conditions that may be imposed have been added to the Guidelines.
- Providing Legally Privileged Material as an Example of Exemplary Cooperation: The CBI has confirmed in the Feedback Statement that a decision not to provide privileged material will be considered by the CBI to be a neutral factor and will not impact on whether the subject of an investigation is otherwise given credit for cooperating with the investigation. The provision of legally privileged material to the CBI remains a recognised example of exemplary cooperation.
ASP Court Confirmation and Appeals
- Appealable decision: The Guidelines have been amended to clarify that the inquiry decision is the only decision under the ASP that is an “appealable decision”, and it may be appealed to the Irish Financial Services Appeals Tribunal.
- Subjects being Accompanied at any stage of the ASP: The Guidelines have been amended to clarify that a subject may be accompanied by an independent legal representative when attending interview. The CBI will determine a request for a non-legal representative to attend on a case-by-case basis.
- Central Bank Functions: The Guidelines have been amended to clarify that the person who decides whether to hold an inquiry cannot have been involved in carrying out the investigation.
For further insights on the IAF and SEAR, visit our dedicated webpage.
Please get in touch with any member of our market-leading Financial Regulation: Investigation and Enforcement team if you wish to discuss the ASP. We advise and support clients on a wide range of financial regulatory investigations and enforcement issues and have deep specialist knowledge of the financial services regulatory environment and experience in managing complex contentious regulatory matters.
With thanks to trainee Fiona Hughes for her contribution to this update.