The terms of the Credit Institutions Financial Support (“CIFS”) Scheme (Statutory Instrument No. 411 of 2008) imposed ongoing obligations on covered institutions. The obligations are set out in paragraphs 24 to 52 of the Schedule to the CIFS Scheme. The Schedule contains provisions on restructuring, board representation, commercial conduct, remuneration and transparency, and impose reporting requirements on covered institutions.
Please see Annex I below for a full list of obligations under the CIFS Scheme.
The obligations imposed on participating institutions under the terms of the Eligible Liabilities Guarantee (“ELG”) Scheme (Statutory Instrument No. 490 of 2009) itself are chiefly concerned with the establishment and operation of the Scheme. However, paragraph 22 of the ELG Scheme empowers the Minister for Finance to direct that participating institutions comply with some or all of the provisions on conduct, transparency and reporting requirements set out paragraphs 24 and 52 of the CIFS Scheme.
Please see Annex II below for a full list of obligations under the ELG Scheme.
It should be noted that, in 2022, the Minister and each of Bank of Ireland, AIB and PTSB entered in to Deeds of Partial Release, to release the banks from contractual obligations entered into in CIFS Guarantee Acceptance Deeds in 2008 and ELG Scheme Agreements in 2009. These contractual provisions were obsolete given there were no longer any guaranteed obligations under the Schemes. For example, obligations released under the Deed of Release include an obligation for the banks to provide information to the Minister where required to perform his obligations under the CIFS Scheme and an obligation on the banks to pay interest on all amounts demanded by the Minister under the ELG Scheme.
Therefore, the banks were already released from some of the obligations under CIFS and ELG schemes prior to the revocation of the Schemes late last year.
Please see Annex III below for a full list of the obligations released under the Deeds of release.
The obligations and rights assigned to the Minister under the CIFS and ELG legislation such as data reporting or ensuring compliance with codes of practices have largely been codified into either domestic primary legislation or the Capital Requirements Regulation, as amended. The comprehensive reporting requirements in the Capital Requirements Regulations remain in place following the revocation of the Credit Institutions Financial Support Scheme and the Eligible Liabilities Guarantee Scheme.
Annex I - Paragraphs 24 to 52 of the Credit Institutions Financial Support Scheme (S.I. 411 of 2008)
Transparency and Enforcement
Information and Monitoring
24. A covered institution shall submit such reports as are requested by the Regulatory Authority on which the Regulatory Authority considers are necessary to monitor compliance with the terms and conditions of this Scheme.
25. The Regulatory Authority shall submit reports on the compliance by covered institutions with the terms and conditions of this Scheme to the Minister in such form, containing such information and at such frequency as the Minister shall determine.
26. Each covered institution shall, at such frequency as the Minister shall determine, confirm in writing to the Minister its compliance with the Irish Banking Federation Code of Practice on Mortgage Arrears and the Consumer Protection Code issued by the Regulatory Authority.
27. Every quarter each covered institution shall provide the Regulatory Authority with compliance certificates, from: (i) its auditors; and (ii) its chairman and chief executive jointly, confirming compliance with all of the terms and conditions of this Scheme.
28. The Minister, may direct a covered institution to draw up a restructuring plan to ensure compliance with the objectives of this Scheme.
29. The Minister may direct the Regulatory Authority to require such other reports from a covered institution as he or she may consider necessary.
30. The Minister, the Governor and the Regulatory Authority may disclose to each other any information which they receive concerning a covered institution or its subsidiaries and may use such information in respect of the performance of this Scheme or in the case of the Central Bank, the performance of its statutory functions.
31. Each covered institution shall consult with the Regulatory Authority with a view to preparing a code of practice for effective risk management.
Board representation and executive management
32. A covered institution shall, take all reasonable steps to appoint at least one but no more than two non-executive directors to its board from a panel approved by the Minister during the period of the guarantee. The covered institution shall remunerate those non-executive directors. The Minister will also have the right to appoint persons to observe all meetings of the remuneration, audit, credit and risk committees of a covered institution.
33. The board of a covered institution shall represent an appropriate balance between executive and non-executive directors. The Regulatory Authority may require changes in the composition where such a balance is not in place.
34. A covered institution shall comply with any direction from the Minister or the Regulatory Authority or both to take specified steps to restructure its executive management responsibilities, strengthen its management capacity and improve its corporate governance.
Enforcement
35. If a covered institution is in breach of its obligations under this Scheme in a material manner, the Minister may by notice in writing:
35.1 increase the charge payable by the covered institution; or
35.2 impose additional conditions on the covered institution; or
35.3 revoke the guarantee for the covered institution.
Commercial Conduct
36. The Regulatory Authority may regulate the commercial conduct of covered institutions strictly in order to achieve the objectives of this Scheme. The Regulatory Authority shall impose conditions regulating the commercial conduct of a covered institution’s business, in order to minimise any potential competitive distortion that may otherwise arise and to avoid any abuse of the guarantee. The Regulatory Authority shall monitor and review the expansion of the activities of covered institutions in order to ensure that their aggregate growth in balance sheet volume is not excessive and does not in any event exceed:
36.1 the annual rate of growth of Irish nominal GDP in the preceding year; or
36.2 the average annual historical growth in their balance sheets of Irish credit institutions during the period 1987-2007; or
36.3 the average growth rate of the balance sheet volumes in the credit institution sector in the EU in the preceding six months, whichever is the higher.
In case of any breach of this obligation, the Regulatory Authority shall adopt, within four weeks, appropriate measures to restore the situation and inform the European Commission thereof.
37. A covered institution shall conduct its affairs in a manner that progressively reduces the risk to the Exchequer under its guarantee. A covered institution shall be required to do one or more of the following:
37.1 appropriately manage its balance sheet and the need to avoid significant distortion of financial flows;
37.2 put in place improved structures to ensure long-term stability of funding;
37.3 take steps to restructure its executive management responsibilities and strengthen its management capacity and corporate governance;
37.4 improve liquidity, solvency and capital ratios in circumstances where this is required;
37.5 take measures to minimise any risk of recourse to the guarantee.
38. No covered institution shall without the prior approval of the Minister acquire shares in any other credit institution or financial institution, establish any subsidiaries or enter into or acquire any new business or businesses, where such action would increase the liability of the Exchequer under the guarantee.
39. A covered institution shall comply with any targets on assets and liabilities to be set by the Regulatory Authority. A covered institution shall be required to limit its exposures to any sector, customer or connected customers where it is in the public interest, and in the interests of financial stability and confidence in the banking system.
40. A covered institution shall take steps to establish such funding structures as the Regulatory Authority thinks appropriate.
41. A covered institution shall take steps to comply with such liquidity, solvency and capital ratios as the Regulatory Authority may direct.
42. A covered institution shall comply with rules governing the declaration and payment of dividends made by the Minister. No new dividends shall be declared or paid by a covered institution before such rules are made.
43. A covered institution shall not engage in buy-backs (public or private) or redemptions of its ordinary or other shares without the approval of the Regulatory Authority.
44. A covered institution shall not pass on the costs of the guarantee to its customers in an unwarranted manner.
Corporate Social Responsibility
45. Each covered institution shall procure that the Irish Banking Federation, submits a bi-annual report to the Minister on goals and targets laid down by the Minister in relation to Corporate Social Responsibility.
Controls on Executive Remuneration
46. The Minister will establish an independent committee called the Covered Institution Remuneration Oversight Committee (“CIROC”) comprising three members appointed by him or her to oversee all remuneration plans of senior executives of the covered institutions.
47. Each covered institution shall prepare a plan to structure the remuneration packages of directors and executives so as to take account of the objectives of the Act of 2008. Remuneration shall include total salary, bonuses, pension payments and any other benefits received from a covered institution and its group entities, or otherwise received by a director or executive arising from the performance of his or her functions as a director or executive. Bonuses shall be measurably linked to reductions in guarantee charges, reduction in excessive risk taking and encouraging the long-term sustainability of the covered institution.
48. Each covered institution shall submit a report to CIROC, no later than six weeks after the relevant covered institution joins this Scheme, demonstrating how its remuneration policies for the year ahead will comply with paragraph 47. CIROC shall prepare a report for the Minister, making a recommendation where appropriate on compliance by the covered institution. If the covered institution has not complied with the requirements, the covered institution may be directed to amend the remuneration plan so that compliance is achieved.
49. A covered institution shall not enter into any contractual arrangement that provides for termination compensation or equivalent to be payable to any director or executive for the duration of this Scheme.
Compliance and Furtherance of this Scheme and the Act of 2008
50. A covered institution shall manage the business of its group at all times. The Minister may require certain obligations of this Scheme to apply to the parent of a covered institution or any member of its group as a condition of benefiting from this Scheme.
Oversight, Co-ordination and Review
51. The Minister shall consult with the Governor and the Regulatory Authority before exercising any of his or her functions under this Scheme which relate to any of the statutory responsibilities of the Governor and the Regulatory Authority. However, decisions or actions taken by the Minister pursuant to or in relation to this Scheme are in his or her absolute discretion provided that nothing in this Scheme shall prejudice the independence of the Governor or the Regulatory Authority.
52. For the duration of this Scheme, the Governor and the Chief Executive of the Regulatory Authority shall monitor the operation of this Scheme and shall report regularly to the Minister as to the operation of this Scheme and the compliance by covered institutions with this Scheme.
Annex II - Paragraphs 19 to 29 of the Eligible Liabilities Guarantee Scheme (S.I. 490 of 2009)
Fee
19. A fee shall be payable to the Minister or his nominee by each participating institution in respect of each guaranteed liability, in accordance with Annex 7 of the rules and in accordance with EU State aid rules or such other rules as may be applicable. The basis for the calculation of the fee shall be advised by the Minister to the participating institutions from time to time.
20. Notwithstanding paragraph 19 above, for a three-month period from the commencement date, the fee applicable to any guaranteed liabilities of a participating institution with a maturity of one (1) month or less shall be based on an overall flat fee of 25 basis points per annum.
21. The Minister shall report to the Oireachtas Committee on Finance and the Public Service every six months on the level of fees received from each participating institution and progress in relation to the purposes of the Act and compliance with the terms and conditions of this scheme.
Commercial conduct
22. The Minister, after consultation with the Governor and the Regulatory Authority, shall issue such direction or directions to the participating institutions which he or she is of the view are necessary to ensure that the objectives of the Act and this Scheme are met. Such directions may include directions to comply with some or all of the provisions on conduct, transparency and reporting requirements applicable to those participating institutions as covered institutions pursuant to paragraphs 24 to 52 of the schedule to the CIFS Scheme. Each participating institution shall comply with any such direction including after the CIFS Scheme has expired or if the participating institution is no longer a covered institution under the CIFS Scheme.
23. The Minister, after consultation with the Governor and the Regulatory Authority, may at any time direct a participating institution to draw up a restructuring plan to ensure compliance with the objectives of this Scheme within such timeframe as the Minister specifies. The Minister shall require a restructuring plan to be produced if a participating institution’s solvency ratio falls below the minimum regulatory standards applicable to it on a material basis. A restructuring plan shall also be submitted to the Minister by a participating institution within no later than 6 months of: (a) the Minister notifying the participating institution that he or she has been called upon to make a payment under the eligible liability guarantee with respect to that participating institution; or (b) the commencement of insolvency or similar proceedings or the appointment of an insolvency official in respect of the participating institution. Any restructuring plan drawn up by a participating institution shall be required to comply with EU State aid and competition law and the need for a restructuring plan shall be communicated by the Minister to the EU Commission immediately. The Minister, in consultation with the Governor and the Regulatory Authority, may direct the participating institution to make changes to such restructuring plan and implement the plan (including any changes) within a specified timeframe as determined by him or her. A participating institution shall comply with any such direction.
24. A participating institution shall submit, or assist in the preparation of, such reports or provide such information as requested by the Minister, the scheme operator or the Regulatory Authority, which the Minister, the scheme operator or the Regulatory Authority consider are necessary to monitor compliance with the terms and conditions of this Scheme and the rules and the achievement of the purposes of the Act.
25. If in the opinion of the Minister a participating institution is in material breach of its obligations under this Scheme or the rules, the Minister may by notice in writing:
25.1increase the fee payable under paragraphs 19 and 20 above by the participating institution; or
25.2 impose additional conditions on the participating institution; or
25.3 take such other action as the Minister deems appropriate in the context of the breach,
provided that any action taken by the Minister pursuant to this paragraph 25 shall be without prejudice to the unconditional and irrevocable nature of an eligible liability guarantee in respect of guaranteed liabilities existing at the time such action is taken.
Claims under the Eligible Liability Guarantee
26. In the event of default of a participating institution in discharging a guaranteed liability when due and payable, a demand for payment in respect of that guaranteed liability under the eligible liability guarantee shall be in writing and made in the form prescribed in the rules or such other form from time to time specified by the Minister and delivered to the addressees therein specified. A demand for payment in respect of a guaranteed liability under the eligible liability guarantee which is not made in the form prescribed in the rules or as otherwise determined by the Minister shall not be a valid claim, shall be returned and no payment shall be made under such demand. The foregoing is without prejudice to the right of any person to re-submit a demand for payment in such circumstances.
27. The Minister shall make timely payment in respect of a valid demand for payment in respect of a guaranteed liability under the eligible liability guarantee to the claimant or to a person or persons duly nominated by such claimant, including a depositor, the principal paying agent, the registrar, the trustee, the relevant instrument holder or such other appropriate person in respect of the relevant guaranteed liability.
28. Any payment pursuant to paragraph 27 above shall, notwithstanding any contrary provision in any document under or by reference to which the guaranteed liability is issued, created or constituted, for the purposes of the eligible liability guarantee be deemed to be payment to the ultimate beneficiary of the guaranteed liability, and such payment shall constitute a complete discharge by the Minister in respect of his or her liability under the eligible liability guarantee in respect of the relevant demand.
29. The Minister may, in his or her discretion, waive the requirement for a beneficiary to make a demand as described in paragraph 26 above.
Annex III – Obligations released under the Deeds of Release
CIFS Scheme
1. A right for the Minister to give directions under the CIFS Scheme.
2. An obligation for the banks to pay the Minister for credit to designated accounts under the CIFS Scheme.
3. Authorisation for the Minister to make payments related to the CIFS Scheme.
4. An obligation for the banks to provide information to the Minister where required to perform his obligations under the CIFS Scheme.
5. A right for the Minister to direct the banks to comply with obligations under the CIFS Scheme.
ELG Scheme
1. The obligation on the banks to pay fees for the ELG Scheme.
2. An obligation on the banks to pay interest on all amounts demanded by the Minister under the ELG Scheme.
3. A right for the Minister to apply set off on any amounts owed by a bank under the ELG Scheme.
4. A right for the Minister to give directions under the ELG Scheme.
5. An indemnity in favour of the Minister against liabilities arising out the ELG Scheme.
6. Authorisation for the Minister to make payments related to the ELG Scheme.
7. An obligation for the banks to provide information to the Minister where required to perform his obligations under the ELG Scheme.