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ESMA consultation on EMIR Technical Advice relating to imposing fines on Trade Repositories

On 18 October 2013, the European Securities and Markets Authority (ESMA) published consultation paper 2013/1292 to provide technical advice to the European Commission on the procedural rules for imposing fines and periodic penalty payments on Trade Repositories (TRs).

The advice requested is in relation to Article 64(7) of EMIR and sets out ESMA’s preferred options for the procedural rules including:

  • Procedures to guarantee the rights of defence both during and upon completion of investigations, including any oral hearings;
  • A reasonable time limit for written submissions;
  • Procedures regarding access to files by the persons subject to investigation and the protection of confidential information affecting third parties;
  • Documents to be submitted by the independent investigation officer to ESMA’s Board of Supervisors;
  • Limitation periods for the imposition or enforcement of penalties;
  • Methods for fine collection or periodic penalty payments.

ESMA believes that a panel or committee should be appointed to carry out particular steps of the procedure to achieve a more effective process while simultaneously respecting the rights of defence of persons subject to investigation and the principle of collegiality under ESMA.

ESMA considers these steps as interim and procedural measures and will consider feedback until 15 November 2013.  ESMA will deliver its advice on technical aspects of the future regulation by 31 December 2013 which will be adopted by the Commission in the form of a Delegated Act.

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