Right to be heard by ESMA with regard to interim decisions on supervisory measures
Article 1
Delegated Regulation (EU) No 667/2014 is amended as follows: (1) in Article 3, paragraph 1 is replaced by the following: ‘1. The complete file to be submitted by the investigation officer to ESMA shall include the following documents: (a) the statement of findings and a copy of the statement of findings addressed to the person subject to the investigation; (b) a copy of the written submissions by the person subject to the investigation; (c) the minutes of any oral hearing.’; (2) the following Article 3a is inserted: ‘Article 3a Right to be heard by ESMA with regard to interim decisions on supervisory measures 1. By way of derogation from Articles 2 and 3, the procedure set out in this Article shall apply where ESMA adopts interim decisions pursuant to the second subparagraph of Article 67(1) of Regulation (EU) No 648/2012. 2. The investigation officer shall submit the file with his or her findings to ESMA and immediately inform the person subject to investigation of his or her findings but shall not provide that person with the opportunity to make submissions. The statement of findings of the investigation officer shall set out the facts liable to constitute one or more of the infringements listed in Annex I to Regulation (EU) No 648/2012, including any aggravating or mitigating factors of those infringements. Where so requested, the investigation officer shall grant access to the file to the person subject to investigation. 3. Where ESMA considers that the facts described in the statement of findings of the investigation officer appear not to constitute an infringement listed in Annex I to Regulation (EU) No 648/2012, it shall decide to close the investigation and notify that decision to the person subject to investigation. 4. Where ESMA decides that one or more of the infringements listed in Annex I to Regulation (EU) No 648/2012 has been committed by a person subject to investigation and adopts an interim decision imposing supervisory measures as laid down in Article 73(1), points (a), (c) and (d), of Regulation (EU) No 648/2012, ESMA shall immediately notify that interim decision to that person. ESMA shall set a reasonable time limit within which the persons subject to investigation may make written submissions on the interim decision. ESMA shall not be obliged to take into account written submissions received after the expiry of that time limit. Where so requested, ESMA shall grant access to the file to the persons subject to the investigation. ESMA may invite the persons subject to investigation to attend an oral hearing. The persons subject to investigation may be assisted by their lawyers, or by other qualified persons admitted by ESMA. Oral hearings shall not be held in public. 5. ESMA shall hear the person subject to the investigation and take a final decision as soon as possible after the adoption of the interim decision. Where ESMA considers, based on the complete file and after having heard the persons subject to investigation, that one or more of the infringements listed in Annex I to Regulation (EU) No 648/2012 has been committed by the person subject to investigation, it shall adopt a confirmatory decision imposing one or more of the supervisory measures laid down in Article 73(1), points (a), (c) and (d), of Regulation (EU) No 648/2012. ESMA shall immediately notify the person concerned of that decision. Where ESMA adopts a final decision that does not confirm the interim decision, the interim decision shall be deemed to be repealed.’; (3) Article 8 is amended as follows: (a) the first subparagraph is replaced by the following: ‘The amounts of fines and periodic penalty payments collected by ESMA shall be lodged to an interest-bearing account opened by the accounting officer of ESMA until such time as they become final. In case multiple fines or periodic penalty payments are collected by ESMA in parallel, the accounting officer of ESMA shall ensure that they are lodged to different accounts or subaccounts. Amounts paid shall not be entered into ESMA’s budget or recorded as budgetary amounts.’; (b) the third subparagraph is replaced by the following: ‘ESMA’s Accounting Officer shall report on a regular basis to the Authorising Officer of Directorate-General for Financial Stability, Financial Services and Capital Markets Union of the European Commission on the amounts of fines and periodic penalty payments imposed and their status.’.