L 145/2
EN
Official Journal of the European Union
24.5.2022
(4)
ESMA should assess the completeness of the file submitted by the investigation officer based on a list of documents.
To ensure that the person subject to the investigation is able to adequately prepare their defence, before adopting a final decision with regard to fines or supervisory measures, ESMA should provide them the right to provide further written comments.
(5)
In order to ensure that persons cooperate with an investigation, ESMA should be able to take certain coercive measures.
When ESMA has taken a decision requiring a person to bring an infringement to an end, or has requested to supply complete information or to submit complete records, data or any other material, or has taken a decision to conduct an on-site inspection, it may impose periodic penalty payments in order to compel the person subject to the investigation to comply with the decision taken.
Before imposing periodic penalty payments ESMA should provide the person the opportunity to provide written submissions.
(6)
The right of defence should be weighed against the need, under specific circumstances, for urgent action by ESMA.
Where urgent action pursuant to Article 38l of Regulation (EU) No 600/2014 is warranted, the right of defence of the person subject to the investigation should not be an impediment to ESMA taking urgent measures.
In such case, in order to prevent significant and imminent damage to the financial system, ESMA may adopt an interim decision without providing the person subject to the investigation the opportunity to make submissions.
ESMA should give the person the opportunity to be heard as soon as possible after adopting the interim decision and before a confirmatory decision is adopted.
The procedure should nonetheless grant the right of the person subject to the investigation to be heard in advance by the investigation officer.
(7)
The files prepared by ESMA and the investigation officer contain information that is indispensable to the person concerned in preparing for judicial or administrative proceedings.
After a person subject to investigation has received the notification of statement of finding either from the investigation officer or from ESMA, the person should therefore be entitled to have access to the file subject to the legitimate interest of other persons in the protection of their business secrets.
The use of file documents accessed should only be permitted for judicial or administrative proceedings in relation to infringements of Regulation (EU) No 600/2014.
(8)
Both the power to impose fines and periodic penalty payments and the power to enforce fines and periodic penalty payments should be subject to a limitation period.
For reasons of consistency, limitation periods for the imposition and enforcement of fines or periodic penalty payments should take into account existing Union legislation applicable to the imposition and enforcement of penalties on supervised entities and ESMA’s experience in applying such legislation.
(9)
In order for ESMA to ensure safekeeping of collected fines and periodic penalties, ESMA should deposit them on interest-bearing accounts that are opened exclusively for the purpose of a single fine or periodic penalty payments aiming at ending a single infringement.
As a matter of budgetary prudence, ESMA should only transfer the amounts to the Commission once the decisions are final due to the rights to appeal being exhausted or lapsed.
(10)
In order to ensure smooth functioning of the new supervisory framework for DRSPs, as introduced in Article 4 of Regulation (EU) 2019/2175, this Regulation should enter into force as a matter of urgency,
HAS ADOPTED THIS REGULATION:
Article 1
Definition For the purpose of this Regulation ‘data reporting services provider’, or ‘DRSP’, means an approved publication arrangement or an approved reporting mechanism as defined in Article 2(1)(34) and Article 2(1)(36) of Regulation (EU) No 600/2014.