EMIR-forordningen: utfyllende bestemmelser om bøtelegging av transaksjonsregistre
(Under forberedelse) Delegert kommisjonsforordning (EU) .../... om utfylling av europaparlaments- og rådsforordning (EU) nr. 667/2014 med hensyn til innholdet i saksdokumentene som etterforskningssaksbehandleren skal sende til Den europeiske verdipapir- og markedstilsynsmyndighet, retten til å bli hørt med hensyn til midlertidige beslutninger og bøter og tvangsbøter
(In preparation) Commission Delegated Regulation (EU) .../... amending Commission Delegated Regulation (EU) No 667/2014 with regard to the content of the file to be submitted by the investigation officer to the European Securities and Markets Authority, the right to be heard with regard to interim decisions and the lodging of fines and periodic penalty payments
Utkast til delegert kommisjonsforordning lagt fram av Kommisjonen 7.12.2020 med tilbakemeldingsfrist 4.1.2021
Bakgrunn
BAKGRUNN (fra kommisjonsutkastet, engelsk utgave)
(1) Regulation (EU) No 648/2012 has been amended by Regulation (EU) 2019/834 of the European Parliament and of the Council. Those amendments concerned, inter alia, the definition of financial counterparties, the right of access to the investigation file by persons subject an investigation, the fines to be paid by a trade repository that has, intentionally or negligently, committed one of the infringements listed in Annex I to Regulation (EU) No 648/2012, and the right of persons that may be subject to a periodic penalty payment to be heard.
(2) Commission Delegated Regulation (EU) No 667/2014 was adopted on the basis of Article 64(7) of Regulation (EU) No 648/2012 and deals with the rules of procedure for penalties imposed on trade repositories by the European Securities and Markets Authority (‘ESMA’), including rules on the right of defence. Since the amendments introduced by Regulation (EU) 2019/834 into Regulation (EU) No 648/2012 concern those rules of procedure, it is necessary to ensure that those amendments are also reflected in Delegated Regulation (EU) No 667/2014.
(3) It is important that transparency is ensured between the investigation officer appointed by ESMA in accordance with Article 64 of Regulation (EU) No 648/2012 and ESMA itself. Such transparency requires that the investigation officer’s file contains the submissions made by persons subject to the investigation and the statement of findings on the basis on which those persons provided their submissions.
(4) According to the second subparagraph of Article 67(1) of Regulation (EU) No 648/2012, ESMA has the possibility to adopt, where urgent action is needed, interim decisions without first hearing the persons subject to an investigation or proceedings. To ensure the effectiveness of ESMA’s power to adopt interim decisions, persons subject to an investigation should not have the right to access the file or to be heard before the investigation officer submits the file with his or her findings to ESMA or before ESMA adopts its interim decision. However, to respect the rights of defence, persons subject to an investigation should have the right to access the file as soon as the investigation officer has submitted the file with his or her statement of findings to ESMA and the right to be heard as soon as possible after ESMA has adopted its interim decision.
(5) According to Article 68(5) of Regulation (EU) No 648/2012, the amounts corresponding to the fines and periodic penalty payments collected by ESMA are to be allocated to the general budget of the Union. Fines and periodic penalty payments collected by ESMA should be lodged to interest bearing accounts until they become final. For each decision imposing fines or periodic penalty payments, the amounts collected by ESMA should be lodged to a separate accounts or subaccounts to ensure traceability until that decision becomes final.
(6) Delegated Regulation (EU) No 667/2014 should be amended accordingly.
(7) In the interest of the immediate exercise by ESMA of effective supervisory and enforcement powers, this Regulation should enter into force as a matter of urgency,
(1) Regulation (EU) No 648/2012 has been amended by Regulation (EU) 2019/834 of the European Parliament and of the Council. Those amendments concerned, inter alia, the definition of financial counterparties, the right of access to the investigation file by persons subject an investigation, the fines to be paid by a trade repository that has, intentionally or negligently, committed one of the infringements listed in Annex I to Regulation (EU) No 648/2012, and the right of persons that may be subject to a periodic penalty payment to be heard.
(2) Commission Delegated Regulation (EU) No 667/2014 was adopted on the basis of Article 64(7) of Regulation (EU) No 648/2012 and deals with the rules of procedure for penalties imposed on trade repositories by the European Securities and Markets Authority (‘ESMA’), including rules on the right of defence. Since the amendments introduced by Regulation (EU) 2019/834 into Regulation (EU) No 648/2012 concern those rules of procedure, it is necessary to ensure that those amendments are also reflected in Delegated Regulation (EU) No 667/2014.
(3) It is important that transparency is ensured between the investigation officer appointed by ESMA in accordance with Article 64 of Regulation (EU) No 648/2012 and ESMA itself. Such transparency requires that the investigation officer’s file contains the submissions made by persons subject to the investigation and the statement of findings on the basis on which those persons provided their submissions.
(4) According to the second subparagraph of Article 67(1) of Regulation (EU) No 648/2012, ESMA has the possibility to adopt, where urgent action is needed, interim decisions without first hearing the persons subject to an investigation or proceedings. To ensure the effectiveness of ESMA’s power to adopt interim decisions, persons subject to an investigation should not have the right to access the file or to be heard before the investigation officer submits the file with his or her findings to ESMA or before ESMA adopts its interim decision. However, to respect the rights of defence, persons subject to an investigation should have the right to access the file as soon as the investigation officer has submitted the file with his or her statement of findings to ESMA and the right to be heard as soon as possible after ESMA has adopted its interim decision.
(5) According to Article 68(5) of Regulation (EU) No 648/2012, the amounts corresponding to the fines and periodic penalty payments collected by ESMA are to be allocated to the general budget of the Union. Fines and periodic penalty payments collected by ESMA should be lodged to interest bearing accounts until they become final. For each decision imposing fines or periodic penalty payments, the amounts collected by ESMA should be lodged to a separate accounts or subaccounts to ensure traceability until that decision becomes final.
(6) Delegated Regulation (EU) No 667/2014 should be amended accordingly.
(7) In the interest of the immediate exercise by ESMA of effective supervisory and enforcement powers, this Regulation should enter into force as a matter of urgency,