The Credit Institutions (Reorganisation and Winding up) Regulations 2004

Publication Date:January 01, 2004

2004No. 1045

INSOLVENCY

COMPANIES

The Credit Institutions (Reorganisation and Winding up) Regulations 2004

1stApril2004

5thApril2004

5thMay2004

ARRANGEMENT OF REGULATIONS

PART 1

General

1.

Citation and commencement

2.

Interpretation

PART 2

Insolvency Measures and Proceedings: Jurisdiction in Relation to Credit Institutions

3.

Prohibition against winding up etc. EEA credit institutions in the United Kingdom

4.

Schemes of arrangement

5.

Reorganisation measures and winding-up proceedings in respect of EEA credit institutions effective in the United Kingdom

6.

Confirmation by the court of a creditors' voluntary winding up

PART 3

Modifications of the Law of Insolvency: Notification and Publication

7.

Modifications of the Law of Insolvency

8.

Consultation of the Authority prior to a voluntary winding up

9.

Notification of relevant decision to the Authority

10.

Notification to EEA regulators

11.

Withdrawal of authorisation

12.

Publication of voluntary arrangement, administration order winding-up order or scheme of arrangement

13.

Honouring of certain obligations

14.

Notification to creditors: winding-up proceedings

15.

Submission of claims by EEA creditors

16.

Reports to creditors

17.

Service of notices and documents

18.

Disclosure of confidential information received from an EEA regulator

PART 4

Reorganisation or Winding up of UK Credit Institutions: Recognition of EEA Rights

19.

Application of this Part

20.

Application of this Part: assets subject to a section 425 or Article 418 compromise or arrangement

21.

Interpretation of this Part

22.

EEA rights: applicable law in the winding up of a UK credit institution

23.

Employment contracts and relationships

24.

Contracts in connection with immovable property

25.

Registrable rights

26.

Third parties' rights in rem

27.

Reservation of title agreements etc.

28.

Creditors' rights to set off

29.

Regulated markets

30.

Detrimental acts pursuant to the law of an EEA State

31.

Protection of third party purchasers

32.

Lawsuits pending

33.

Lex rei sitae

34.

Netting agreements

35.

Repurchase agreements

PART 5

Third Country Credit Institutions

36.

Interpretation of this Part

37.

Application of these Regulations to a third country credit institution

38.

Disclosure of confidential information: third country credit institution

The Treasury, being a government department designated( 1) for the purposes of section 2(2) of the European Communities Act 1972( 2) in relation to measures relating to credit and financial institutions and to the taking of deposits or other repayable funds from the public, in exercise of the powers conferred by that section, hereby make the following Regulations:

PART 1

General

Citation and commencement

1. These Regulations may be cited as the Credit Institutions (Reorganisation and Winding up) Regulations 2004, and come into force on 5th May 2004.

Interpretation

2. - (l) In these Regulations -

"the 1985 Act" means the Companies Act 1985( 3);

"the 1986 Act" means the Insolvency Act 1986( 4);

"the 2000 Act" means the Financial Services and Markets Act 2000( 5);

"the 1989 Order" means the Insolvency (Northern Ireland) Order 1989( 6);

"administrator" has the meaning given by paragraph 13 of Schedule B1 to the 1986 Act or section 8(2) of the 1986 Act as the case may be;

"Article 418 compromise or arrangement" means a compromise or arrangement sanctioned by the court in relation to a UK credit institution under Article 418 of the Companies Order, but does not include a compromise or arrangement falling within Article 420 or Article 420A of that Order (reconstructions or amalgamations);

"the Authority" means the Financial Services Authority;

"banking consolidation directive" means the directive of the European Parliament and the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions (2000/12/EC)( 7) as most recently amended by the directive of the European Parliament and the Council of 16 December 2002 on the supplementary supervision of credit institutions insurance undertakings and investment firms in a financial conglomerate (2002/87/EC)( 8);

"branch", in relation to an EEA or UK credit institution has the meaning given by Article 1(3) of the banking consolidation directive;

"claim" means a claim submitted by a creditor of a UK credit institution in the course of -

(a) a winding up,(b) an administration, or(c) a voluntary arrangement,

with a view to recovering his debt in whole or in part, and includes a proof, within the meaning of rule 2.72 of the Insolvency Rules, or a proof of debt within the meaning of rule 4.73(4) of the Insolvency Rules or Rule 4.079(4) of the Insolvency Rules (Northern Ireland), as the case may be, or in Scotland a claim made in accordance with rule 4.15 of the Insolvency (Scotland) Rules;

"the Companies Order" means the Companies (Northern Ireland) Order 1986( 9);

"creditors' voluntary winding up" has the meaning given by section 90 of the 1986 Act or Article 76 of the 1989 Order as the case may be;

"debt" -

(a) in relation to a winding up or administration of a UK credit institution, has the meaning given by rule 13.12 of the Insolvency Rules or Article 5(1) of the 1989 Order except that where the credit institution is not a company, references in rule 13.12 or Article 5(1) to a company are to be read as references to the credit institution, and(b) in a case where a voluntary arrangement has effect, in relation to a UK credit institution, means a debt which would constitute a debt in relation to the winding up of that credit institution, except that references in paragraph (1) of rule 13.12 or paragraph (1) of Article 5 of the 1989 Order to the date on which the company goes into liquidation are to be read as references to the date on which the voluntary arrangement has effect;(c) in Scotland - (i) in relation to the winding up of a UK credit institution, shall be interpreted in accordance with Schedule 1 of the Bankruptcy (Scotland) Act 1985 as applied by Chapter 5 of Part 4 of the Insolvency (Scotland) Rules; and(ii) in a case where a voluntary arrangement has effect in relation to a UK credit institution, means a debt which would constitute a debt in relation to the winding up of that credit institution, except that references in Chapter 5 of Part 4 of the Insolvency (Scotland) Rules to the date of commencement of winding up are to be read as references to the date on which the voluntary arrangement has effect;

"directive reorganisation measure" means a reorganisation measure as defined in Article 2 of the reorganisation and winding up directive which was adopted or imposed on or after the 5th May 2004;

"directive winding-up proceedings" means winding-up proceedings as defined in Article 2 of the reorganisation and winding up directive which were opened on or after the 5th May 2004;

"Disclosure Regulations" means the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001( 10);

"EEA credit institution" means an EEA undertaking, other than a UK credit institution, of the kind mentioned in Article 1(1) and (3) and subject to the conditions in Article 2(3) of the banking consolidation directive;

"EEA creditor" means a creditor of a UK credit institution who -

(a) in the case of an individual, is ordinarily resident in an EEA State; and(b) in the case of a body corporate or unincorporated association of persons, has its head office in an EEA State;

"EEA regulator" means a competent authority (within the meaning of Article 1(4) of the banking consolidation directive) of an EEA State;

"EEA State" means a State, other than the United Kingdom, which is a contracting party to the agreement on the European Economic Area signed at Oporto on 2 May 1992;

"home state regulator", in relation to an EEA credit institution, means the relevant EEA regulator in the EEA State where its head office is located;

"the Insolvency Rules" means the Insolvency Rules 1986( 11);

"the Insolvency Rules (Northern Ireland)" means the Insolvency Rules (Northern Ireland) 1991( 12);

"the Insolvency (Scotland) Rules" means the Insolvency (Scotland) Rules 1986( 13);

"liquidator", except for the purposes of regulation 4, includes any person or body appointed by the administrative or judicial authorities whose task is to administer winding-up proceedings in respect of a UK credit institution which is not a body corporate;

"officer", in relation to a company, has the meaning given by section 744 of the 1985 Act or Article 2 of the Companies Order;

"official language" means a language specified in Article 1 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (Regulation 1/58/EEC)( 14) , most recently amended by paragraph (a) of Part XVIII of Annex I to the Act of Accession 1994 (194 N)( 15);

"the reorganisation and winding up directive" means the directive of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (2001/24/EC)( 16);

"section 425 compromise or arrangement" means a compromise or arrangement sanctioned by the court in relation to a UK credit institution under section 425 of the 1985 Act, but does not include a compromise or arrangement falling within section 427 or section 427A of that Act (reconstructions or amalgamations);

"supervisor" has the meaning given by section 7 of the 1986 Act or Article 20 of the 1989 Order as the case may be;

"UK credit institution" means an undertaking whose head office is in the United Kingdom with permission under Part 4 of the 2000 Act to accept deposits or to issue electronic money as the case may be but does not include -

(a) an undertaking which also has permission under Part 4 of the 2000 Act to effect or carry out contracts of insurance; or(b) a credit union within the meaning of section 1 of the Credit Unions Act 1979( 17);

"voluntary...

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