(fra kommisjonsforordningen)

(1) To give full effect to the right to be heard, as guaranteed in Article 39(7) of Regulation (EU) 2024/3005, a person that is subject to an investigation by European Securities and Markets Authority (‘ESMA’) should have the right to make written comments in response to statements of findings issued by ESMA’s investigating officer and ESMA’s Board of Supervisors. That person should be allowed to be assisted by a counsel of his or her choice. 

(2) ESMA should assess the completeness of the file submitted by the investigating officer based on a list of documents. To ensure that the person subject to the investigation is able to adequately prepare their defense, ESMA should, before adopting a final decision to impose a fine or periodic penalty payment, give that person the right to provide further written comments. 

(3) Under Article 37(1), point (b)(ii), of Regulation (EU) 2024/3005 ESMA is to impose periodic penalty payments where a person subject to investigation refuses to submit to such an investigation or to provide information requested by ESMA. To fully guarantee the right of defence of such persons, ESMA should give the person the opportunity to provide written submissions on the matter subject to investigation or on the fact whether such periodic penalty payment is appropriate in the case at hand before such periodic penalty is imposed. 

(4) Both the power to impose fines and periodic penalty payments and the power to enforce fines and periodic penalty payments should be exercised within a reasonable time and therefore be subject to a limitation period. For reasons of consistency and taking into account ESMA’s experience in applying legislation applicable to the imposition and enforcement of penalties on supervised entities, limitation periods for the imposition and enforcement of fines or periodic penalty payments should be the same as in such legislation. 

(5) To ensure the safekeeping of collected fines and periodic penalties, ESMA should deposit the amounts received due to those fines and periodic penalties on interestbearing accounts that are opened exclusively for the purpose of a single fine or periodic penalty payment. As a matter of budgetary prudence, ESMA should only transfer the amounts to the Commission once the decisions are final due to the fact that the rights to appeal have been exhausted or have lapsed,