2020 Legal Highlights
A snapshot of the legal highlights covered in this year's Knowledge Annual Report. Download the report for the full articles.
Anti-Money Laundering
This year saw a continued focus on anti-money laundering and counter-terrorist financing compliance. The main Irish development was the publishing in September of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Bill 2020, which implements most of the outstanding provisions of the Fifth Anti-Money Laundering Directive.
The Bill envisages a number of amendments to the existing legislative framework in the Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010-2018.
Asset Management & Investment Funds
The funds industry met many challenges in 2020. Liquidity was, is, and will continue to be a key area of attention, with a common supervisory action, ESMA guidelines and the impact of the COVID-19 pandemic. Fees also continued to be an important topic with ESMA guidelines on performance fees and an ESMA briefing to national competent authorites.
The Central Bank issued the outcome of the thematic review of its guidance for fund management companies (CP86), requiring action by funds well into 2021.
Corporate Law & Governance
The dominant theme this year was how COVID-19 affected (and continues to affect) the operation of a number of aspects of company law, including AGMs, execution of documents and insolvency scenarios. The Companies (Miscellaneous Provisions) (Covid-19) Act 2020 was introduced to provide temporary relief to companies and businesses grappling with these issues.
Legislation also continues to emerge from Europe, affecting Irish public companies in particular. Irish implementation of the second Shareholders’ Rights Directive occurred earlier in the year.
Data Protection
2020 marked the second anniversary of the entry into force of the GDPR. The first two years have seen a lot of regulatory activity by the Data Protection Commission. The DPC has dealt with over 15,000 complaints and 12,500 breach notifications, issued 5 GDPR fines, opened 77 statutory inquiries into suspected data protection infringements, and sent its first draft one-stop-shop decision to the European Data Protection Board for its binding decision.
There have also been a number of important developments in relation to international data transfers, including the European Court of Justice’s decision on the invalidity of the EU-US Privacy Shield in Schrems II.
Employment
From an employment law perspective, 2020 has undoubtedly been an unprecedented year. At the start of the year, measures such as the planned introduction of gender pay gap reporting were to the fore. However, the events of the year quickly led to legislative priority being given to unprecedented measures, such as the implementation of wage subsidy schemes and the suspension of an employee’s right to claim redundancy while on lay-off for short-time working.
Interesting cases emerged however, in relation to the constitutionality of the Workplace Relations Commission, Sectoral Employment Orders and Protected Disclosures.
Environment & Planning
Over the last number of years, climate change has been consistently high on the agenda of governments and media outlets around the world and 2020 has been no different. In light of the European Green Deal, Ireland is planning legislation to reduce emissions and move Ireland to a more circular economy. The implementation of a more sustainable national waste management plan is also in the works.
In planning law, the Supreme Court recently held that the ‘substitute consent’ process is inconsistent with European law.
Finance
The Irish Finance market has been significantly affected by COVID-19 during 2020. Most of the legislative and regulatory responses have been aimed at facilitating access to finance, relieving regulatory burdens on financial intermediaries and protecting struggling borrowers.
On the non-COVID front, 2020 has seen developments necessitated by Brexit in securities settlement, with further legislation on this due to be adopted by year-end. Requirements regarding notification of certain fixed security interests to Revenue were also extended.
Financial Regulation & Investigations
Consumer protection is the number one priority for the Central Bank of Ireland and this informs the regulator’s ongoing emphasis on governance and culture. Recent supervisory engagements have also focused on decision making and culture in financial institutions with a view to examining the consequences for consumers.
The Central Bank’s Individual Accountability Framework, when introduced, will be a significant project for financial institutions as they formally assign decision-making responsibilities to key staff against the backdrop of administrative sanctions.
Litigation & Dispute Resolution
The courts have attempted to keep the wheels of justice in motion despite COVID-19 restrictions. Litigation highlights of the year include the Supreme Court revisiting the core test for imposing a duty of care in negligence in the case of UCC v ESB. The superior courts also considered the impact of settlement with one concurrent wrongdoer on the liability of another in the Defender case.
On the legislative front, the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 introduced some significant changes to civil procedure, including the concept of a Statement of Truth and reform of the ‘Rule against Hearsay’ to allow the admission of business records in certain circumstances.
Property
The Irish real estate landscape in 2020 has unquestionably been dominated by COVID-19 and the Government’s responses to it. The Government has been slow to interfere with the contractual position under commercial leases, with the only intervention being the introduction of a voluntary code of conduct relating to rent. However, it has taken multiple steps with a view to protecting those residential tenants negatively impacted by the economic situation.
In other developments, amendments made by the Residential Tenancies and Valuation Act 2020 have resulted in a new eight-step process for a landlord wishing to terminate a residential tenancy on the grounds of non-payment of rent.