IRELAND Law and Practice Contributed by: Keith Robinson, Barry Tyrrell and Julia Mullin, Dillon Eustace LLP
Furthermore, the CBI can investigate an individ - ual if the individual was in a CF position within six years of the date of the start of the investiga - tion. Previously, the CBI could only investigate individuals if the individual was in a CF position when the CBI started the investigation. Amendments to the ASP The IAF empowers the CBI to take enforcement action under the ASP directly against individu - als for breaches of their obligations, rather than only for their participation in breaches commit - ted by a firm. This amendment is referred to as the “participation link’” and facilitates the direct pursuit of individuals for contraventions of the conduct standards or responsibilities under the SEAR. This update has been affected by way of an amendment to the Central Bank Act 1942. A further significant update to the ASP is that the High Court is now required to confirm sanc - tions imposed by the CBI under the undisputed fact settlement process and the investigation report settlement process. The amended legis - lation provides that the High Court will confirm the CBI decision unless it is satisfied that the CBI “made an error of law” in its decision or that a sanction “is manifestly disproportionate”. The High Court’s oversight of the settlement process is only required in circumstances where the firm or individual acknowledges the commission of a contravention. 4.3 Remuneration Requirements Banks in Ireland are required to comply with the remuneration requirements set out in the Irish legislation implementing CRD V, the remunera - tion disclosure requirements set out in CRR and the relevant EBA Guidelines. These requirements are designed to apply to banks in a manner that is commensurate with the nature and size of each bank’s operations.
On 2 July 2021, the EBA issued guidelines on sound remuneration policies under Directive 2013/36/EU that took effect from 31 December 2021 (the “EBA Remuneration Guidelines”). A bank’s remuneration policy must promote sound and effective risk management and must not encourage risk-taking that exceeds the bank’s level of tolerated risk. The policy must apply to all staff whose profes - sional activities have a material impact on the risk profile of the bank, including senior manage - ment, risk-takers, staff engaged in CFs and any employees whose total remuneration takes them into the same pay bracket as senior manage - ment and risk-takers. A bank’s policy must be gender neutral and ensure that all staff are paid equally for equal work of equal value. The bank’s policy must also be consistent with its environ - mental, social and governance (ESG) objectives. Staff in CFs are required to be remunerated in accordance with the achievement of objectives linked to their functions that are independent of the performance of the business areas they control. Variable elements of remuneration must be based on assessment of performance over a multiyear period, with payments spread over a period that takes account of the business cycle. The variable component of remuneration for each individual (ie, the bonus) is generally not permitted to exceed 100% of the fixed compo - nent and must be subject to claw back arrange - ments. When granting retention bonuses, a bank must now document the justification for each indi - vidual bonus and also define the applicable performance conditions that were considered in advance of the granting of any such bonus. A bonus can be increased to 200% of a bank employee’s fixed remuneration where share -
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