Statutory Instrument effecting a transfer of banking business challenged

DANSKE BANK A/S AND DECLAN CROWE & MARION CROWE [2015]

Overview

This case concerned a challenge to proceedings issued by the Plaintiff against the Defendants in respect of the repayment of monies due under various loan facility arrangements.

The Defendants raised a technical defence to the effect that as the Plaintiff had never been issued a licence to carry on banking business in Ireland by the Central Bank of Ireland, the Plaintiff could not maintain the proceedings against the Defendants.

Facts

Pursuant to a scheme of transfer dated 30 November 2006, the banking business of National Irish Bank Ltd (NIB) was transferred to Danske Bank A/S with an effective date of 1 April 2007.

The Defendants had executed a mortgage in favour of NIB to secure various loan facilities which was transferred to the Plaintiff as part of the scheme.  The Defendants argued that they had not consented to the transfer of their mortgage to the Plaintiff and submitted that the statutory instrument effecting the transfer of the banking business (SI No 29 of 2007) (the SI) from NIB to the Plaintiff was void and of no legal effect as the Plaintiff did not hold and has never been issued with a licence from the Central Bank of Ireland as is required by Section 33 of the Central Bank Act 1971 (Section 33).

Section 33 relates to the approval by the Minister for Finance of the transfer of a bank's business and refers to the "transferee" as "another holder of a licence".

The Plaintiff submitted that the requirements of Section 33 are superseded and expanded by the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (the Regulations) which were introduced to permit any credit institution already licensed in another member state to undertake banking business in Ireland without the necessity of a licence from the Central Bank.

Held

As Denmark is a member state and as the Plaintiff was a credit institution authorised by a competent authority of another member state and acting through a branch in Ireland, the Court was satisfied that, as a result of the Regulations, there was no need for the Plaintiff to hold a banking licence from the Central Bank of Ireland and the Minister was entitled to approve the scheme of transfer of banking business of NIB to the Plaintiff in 2007.

The full judgment is available here.

For further information please contact Louise McNabola at lmcnabola@algoodbody.com

Date Published: 15 September 2015