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The Credit Institutions (Reorganisation and Winding up) Regulations 2004

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Interpretation

2.—(l) In these Regulations—

“the 1985 Act” means the Companies Act 1985(1);

“the 1986 Act” means the Insolvency Act 1986(2);

“the 2000 Act” means the Financial Services and Markets Act 2000(3);

“the 1989 Order” means the Insolvency (Northern Ireland) Order 1989(4);

“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)(5) 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)(6);

“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(7);

“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(8);

“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(9);

“the Insolvency Rules (Northern Ireland)” means the Insolvency Rules (Northern Ireland) 1991(10);

“the Insolvency (Scotland) Rules” means the Insolvency (Scotland) Rules 1986(11);

“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)(12), most recently amended by paragraph (a) of Part XVIII of Annex I to the Act of Accession 1994 (194 N)(13);

“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)(14);

“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(15);

“voluntary arrangement” means a voluntary arrangement which has effect in relation to a UK credit institution in accordance with section 4A of the 1986 Act or Article 17A of the 1989 Order as the case may be; and

“winding up” means—

(a)

winding up by the court, or

(b)

a creditors' voluntary winding up.

(2) In paragraph (1)—

(a)for the purposes of the definition of “directive reorganisation measure”, a reorganisation measure is adopted at the time when it is treated as adopted or imposed by the law of the relevant EEA State; and

(b)for the purposes of the definition of “directive winding-up proceedings”, winding-up proceedings are opened at the time when they are treated as opened by the law of the relevant EEA State,

and in this paragraph “relevant EEA State” means the EEA State under the law of which the reorganisation is adopted or imposed, or the winding-up proceedings are opened, as the case may be.

(3) In these Regulations, references to the law of insolvency of the United Kingdom include references to every provision made by or under the 1986 Act or the 1989 Order as the case may be; and in relation to partnerships, limited liability partnerships or building societies, references to the law of insolvency or to any provision of the 1986 Act or the 1989 Order are to that law as modified by the Insolvent Partnerships Order 1994(16), the Insolvent Partnerships Order (Northern Ireland) 1995(17), the Limited Liability Partnerships Regulations 2001(18) or the Building Societies Act 1986(19) (as the case may be).

(4) References in these Regulations to “accepting deposits” and a “contract of insurance” must be read with—

(a)section 22 of the 2000 Act;

(b)any relevant order made under that section; and

(c)Schedule 2 to that Act.

(5) For the purposes of the 2000 Act, functions imposed or falling on the Authority under these Regulations shall be deemed to be functions under the 2000 Act.

(2)

1986 c. 45 as amended by the Insolvency Act 2000 (c. 39), the Enterprise Act 2002 (c. 40), S.I. 2002/1037 and S.I. 2002/1240; Part II was replaced by the Enterprise Act 2002, section 248 and Schedule 16. The provisions of Part II continue to apply by virtue of the Enterprise Act 2002 (Commencement No. 4 and Transitional Provisions and Savings) Order 2003 (S.I. 2003/2093) insofar as is necessary to give effect to the Insolvent Partnerships Order 1994 (S.I. 1994/2421) and the Limited Liability Partnerships Regulations 2001 (S.I. 2001/1090). The provisions of Part II (as modified) continue to apply to building societies by virtue of sections 249(l)(e) and 249(2) of the Enterprise Act 2002.

(5)

O.J. No. L126, 26.5.2000, p. 1.

(6)

O.J. No. L035, 11.2.2003, p. 1.

(9)

S.I. 1986/1925 as most recently amended by S.I. 2004/584.

(12)

O.J. No. 17, 6.10.1958, p. 385/58; Special Edition, Series 1, Chapter 1952–1958, p. 0059.

(13)

O.J. No. C241, 29.8.94, p. 258.

(14)

O.J. No. L125, 5.5.2001. p. 15.

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