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The report focuses in particular on the supervisory actions undertaken by NCAs, their supervisory powers and the interaction between NCAs and market participants when monitoring the compliance of the following EMIR requirements:
ESMA has sent its report to the European Parliament, the Council and the Commission today, informing them about the findings, which will also help to gradually identifying best practices and potential areas that could benefit from a higher level of harmonisation.
The report sheds some light on areas that are highly harmonised, such as the sources of information used by NCAs for the purpose of verifying the compliance of the supervised entities with EMIR provisions.
Other aspects covered by this report appear less harmonised, although a common pattern (with variations and different options) can be identified. With respect to the enforcement procedures for imposing disciplinary measures for an infringement of EMIR, NCAs follow processes that could be divided in three steps: a warning, a decision and the sanction. Furthermore, regarding the criteria and the systems used to quantify the administrative fines, we observe that there are four groups of countries: countries where administrative fines are defined up to a maximum amount; countries with a range between a floor and a cap amount; countries where fines combine a fix and a variable amount; and countries in which different amounts are prescribed depending on whether the infringement is committed by a legal or a natural person.
However, the aspect that appears less unified concerns the amounts of the fines, where the level of harmonisation is very low, with amounts ranging between a minimum of 125 euros and a maximum of 100 million euros. In addition, in terms of criminal sanctions related to EMIR infringements, only seven countries envisage this possibility in their legislation.