Pursuant to Article 65 of EMIR, where ESMA finds that a TR has committed one of the infringements listed in Annex I of EMIR, it must impose a fine. Pursuant to Article 66 of EMIR, ESMA must also impose periodic penalty payments in order to compel TRs to curtail any infringement or to comply with their EMIR obligations.
On 29 April 2013 ESMA received a formal request from the EU Commission to provide, by 31 December 2013, technical advice to assist the Commission in formulating procedural rules to impose fines and periodic penalty payments to trade repositories (TRs). ESMA’s subsequent consultation paper was published on 18 October 2013, with a deadline for comments set at 15 November, 2013.
In order to deliver its advice to the Commission, ESMA consulted market participants regarding the procedural rules to impose fines and periodic penalty payments to TRs. Respondents to the consultation were encouraged to provide the relevant information in support of their arguments or proposals. The European Commission‘s Regulation on procedural rules to impose fines and periodic penalty payments to TRs which will be adopted in the form of a delegated act.
In the present technical advice, ESMA has considered that it would be desirable to appoint a panel or committee to carry out particular steps of the procedure in order to achieve a more effective process, whilst fully respecting the rights of defence of persons subject to investigation and the principle of collegiality which governs ESMA’s operations. The execution of such steps by an appointed panel or committee would ensure that the ESMA‘s Board of Supervisors (BoS) is able to function properly and perform its duties whilst reserving for it the adoption of any decision of principle.
ESMA will follow-up on this work with the Commission towards the adoption of the Commission delegated regulation on procedural rules to impose fines and periodic penalty payments to TRs.Steven Maijoor, Chair of the European Securities and Markets Authority already sent the final report which includes the final advice on procedural rules to impose fines or periodic penalty payments to TRs to Jonathan Faull, Director General of Internal Market and Services at the European Commission.
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Cover letter by Steven Maijoor, 20.12.13
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