in force 2011-06-01 MODIFIED+2,060 −1,634§
Amended by Regulation (EU) No 513/2011 32011R0513
applies from: unchanged
Sources disagree — the text comparison and the EU's own amendment metadata found this change; the amending act's instructions do not mention it. All are shown; none is overruled.
The heading and substance shift the supervisory power from the competent authority of the home Member State to ESMA's Board of Supervisors, which acts upon a finding under Article 23e(5) that an infringement listed in Annex III has occurred, rather than a general finding that a registered agency breaches the Regulation's obligations.
The list of available measures is altered, dropping the prior options to take appropriate compliance measures or refer matters for criminal prosecution, and replacing them with a requirement that the agency bring the infringement to an end, while the withdrawal, prohibition, suspension and public-notice measures are retained in modified wording.
New paragraphs are added on the criteria ESMA must weigh when deciding on measures, on prior notice to EBA and EIOPA, and on the timing, notification and publication of decisions, including a right of appeal referencing Article 60(3) of Regulation (EU) No 1095/2010, none of which appeared in the earlier text on college consultation and CESR advice.
Cited: Art. 24, v1 · Art. 24, v2
text before / after
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before (02009R1060-20091207)
Article 24 Supervisory measures by the competent authorities of the home Member State 1. Where the competent authority of the home Member State has established that a registered credit rating agency breaches the obligations arising from this Regulation, it may take the following measures: (a) withdraw the registration of that credit rating agency in accordance with Article 20; (b) temporarily prohibit that credit rating agency from issuing credit ratings with effect throughout the Community; (c) suspend the use, for regulatory purposes, of the credit ratings issued by that credit rating agency with effect throughout the Community; (d) take appropriate measures to ensure that credit rating agencies continue to comply with legal requirements; (e) issue public notices; (f) refer matters for criminal prosecution to its relevant national authorities. 2. Credit ratings may continue to be used for regulatory purposes following the adoption of measures in points (a) and (c) of paragraph 1 during a period not exceeding: (a) ten working days if there are credit ratings of the same financial instrument or entity issued by other credit rating agencies registered under this Regulation; or (b) three months if there are no credit ratings of the same financial instrument or entity issued by other credit rating agencies registered under this Regulation. A competent authority may extend the period referred to in point (b) of the first subparagraph by three months in exceptional circumstances relating to the potential for market disruption or financial instability. 3. Before taking any measures referred to in paragraph 1, the competent authority of the home Member State shall notify the facilitator and shall consult the members of the relevant college. The members of the college shall do everything reasonable within their power to reach an agreement on the necessity to take any measures referred to in paragraph 1. In the absence of agreement between the members of the college, the competent authority of the home Member State shall, at the request of any member of the college or on its own initiative, request advice from CESR. CESR shall provide its advice within 10 working days of receipt of such request. In the absence of agreement between the members of the college on whether to take any measures referred to in paragraph 1 within 15 working days after the matter was notified to the facilitator as referred to in the first subparagraph, the competent authority of the home Member State may adopt a decision. Any deviation of that decision from the opinions expressed by the other members of the college and, where appropriate, the advice provided by CESR shall be fully reasoned. The competent authority of the home Member State shall notify its decision, without undue delay, to the facilitator and CESR. This paragraph shall apply without prejudice to Article 20.
after (02009R1060-20110601)
Article 24 Supervisory measures by ESMA 1. Where, in accordance with Article 23e(5), ESMA's Board of Supervisors finds that a credit rating agency has committed one of the infringements listed in Annex III, it shall take one or more of the following decisions: (a) withdraw the registration of the credit rating agency; (b) temporarily prohibit the credit rating agency from issuing credit ratings with effect throughout the Union, until the infringement has been brought to an end; (c) suspend the use, for regulatory purposes, of the credit ratings issued by the credit rating agency with effect throughout the Union, until the infringement has been brought to an end; (d) require the credit rating agency to bring the infringement to an end; (e) issue public notices. 2. When taking the decisions referred to in paragraph 1, ESMA's Board of Supervisors shall take into account the nature and seriousness of the infringement, having regard to the following criteria: (a) the duration and frequency of the infringement; (b) whether the infringement has revealed serious or systemic weaknesses in the undertaking's procedures or in its management systems or internal controls; (c) whether financial crime was facilitated, occasioned or otherwise attributable to the infringement; (d) whether the infringement has been committed intentionally or negligently. 3. Before taking the decisions referred to in points (a), (b) and (c) of paragraph 1, ESMA's Board of Supervisors shall inform EBA and EIOPA thereof. 4. Credit ratings may continue to be used for regulatory purposes following the adoption of the decisions referred to in points (a) and (c) of paragraph 1 during a period not exceeding: (a) 10 working days from the date ESMA's decision is made public under paragraph 5 if there are credit ratings of the same financial instrument or entity issued by other credit rating agencies registered under this Regulation; or (b) three months from the date ESMA's decision is made public under paragraph 5 if there are no credit ratings of the same financial instrument or entity issued by other credit rating agencies registered under this Regulation. ESMA's Board of Supervisors may extend, including following a request by EBA or EIOPA, the period referred to in point (b) of the first subparagraph by three months in exceptional circumstances relating to the potential for market disruption or financial instability. 5. Without undue delay, ESMA's Board of Supervisors shall notify any decision adopted pursuant to paragraph 1 to the credit rating agency concerned and shall communicate any such decision to the competent authorities and the sectoral competent authorities, the Commission, EBA and EIOPA. It shall make public any such decision on its website within 10 working days from the date when it was adopted. When making public its decision as referred to in the first subparagraph, ESMA's Board of Supervisors shall also make public the right for the credit rating agency concerned to appeal the decision, the fact, where relevant, that such an appeal has been lodged, specifying that such an appeal does not have suspensive effect, and the fact that it is possible for the Board of Appeal to suspend the application of the contested decision in accordance with Article 60(3) of Regulation (EU) No 1095/2010.