(fra kommisjonsforordningen)

(1) To give full effect to the right to be heard, as guaranteed in Article 63(5) of Regulation (EU) 2023/2631, a person that is subject to an investigation by ESMA because that person may have committed one of the infringements listed in Article 60(1) of that Regulation should have the right to make written comments within a reasonable time limit of at least four weeks before the investigating officer submits his or her findings to ESMA. 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 defence, 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) Article 61 of Regulation (EU) 2023/2631 obliges ESMA to impose periodic penalty payments, inter alia 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) The right of defence should be weighed against the need, under specific circumstances, for urgent action by ESMA. Where urgent action pursuant to Article 64(2) of Regulation (EU) 2023/2631 is warranted, the right of defence of the person subject to the investigation should not be an impediment for ESMA to take urgent measures. In such case, in order to prevent significant and imminent damage to the financial system, ESMA should be able to 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. 

(5) ESMA’s power to impose a periodic penalty payment should be exercised with due regard for the right to defence and should not be maintained beyond the period necessary. Where ESMA decides to impose a periodic penalty payment, the person concerned should therefore be given the opportunity to be heard and any penalty payment should no longer be due as of the moment the person concerned complies with the decision that ESMA has addressed to that person. 

(6) The files prepared by ESMA and the investigating 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 findings either from the investigating officer or from ESMA, that 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) 2023/2631. 

(7) 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 reaonable time and therefore 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. 

(8) To ensure safekeeping of collected fines and periodic penalties, ESMA should deposit the amounts received due to those fines and periodic penalties on interest-bearing 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,