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The Final Report covers the majority of the draft RTS and ITS on investor protection topics which ESMA is expected to develop. The remaining draft technical standards ESMA is mandated to develop under MiFID II and MiFIR will be published by the end of 2015. The final report is submitted to the Commission for endorsement of the draft RTS and ITS. The European Commission has three months to endorse the standards.
Section II contains the analysis of technical standards following the responses to the consultation. Section III contains the draft technical standards. Section IV contains the cost-benefit analysis.
Recital 153 of MiFID II states that “It is necessary to reinforce provisions on exchange of information between national competent authorities and to strengthen the duties of assistance and cooperation which they owe to each other. Due to increasing crossborder activity, competent authorities should provide each other with the relevant information for the exercise of their functions, so as to ensure the effective enforcement of this Directive, including in situations where infringements or suspected infringements may be of concern to authorities in two or more Member States. In the exchange of information, strict professional secrecy is needed to ensure the smooth transmission of that information and the protection of particular rights.”
With this objective, Article 80 of MiFID II sets out a framework for cooperation between competent authorities of the EU for supervisory activities, on-site (or on the spot) verifications or investigations. Article 80(3) of MiFID II mandates ESMA to develop draft regulatory technical standards to specify the information to be exchanged between competent authorities when cooperating in supervisory activities, on-the-spot-verifications, and investigations.
ESMA has drafted these technical standards believing that the information to be exchanged should be of a sufficient scope and nature to allow competent authorities to discharge their supervisory duties and functions effectively.
On this same topic, ESMA is also mandate to draft ITS drafted under Article 80(4) of MiFID II and 81(4) on: standard forms, templates, and procedures for competent authorities to cooperate in supervisory activities, on-site-verification and investigations; and standard forms, templates and procedures for the exchange of information between competent authorities.
These ITSs, which ESMA is required to submit to the Commission by 3 January 2016, will cover the general principles and procedures for forms, templates and procedures to be used by authorities when sending and processing of (a) requests for assistance; (b) acknowledgements of receipt; and (c) replies to requests for assistance. These forms, templates and procedures will generally form part of any cooperation.