Art. 36c

in force 2011-06-01 INSERTED+865 −0§

Amended by Regulation (EU) No 513/2011 32011R0513

applies from: unknown (an inserted provision states its own application date only in prose)

Sources disagree — the text comparison and the amending act's instructions found this change; the EU's own amendment metadata does not list it. All are shown; none is overruled.

This provision is entirely new, adding Article 36c which sets out a right for persons subject to proceedings to be heard by ESMA's Board of Supervisors on ESMA's findings before a fine or periodic penalty payment decision is taken under Article 36a or points (a) to (d) of Article 36b(1), with decisions to be based only on findings the persons have had a chance to comment on.

It also adds a second paragraph stating that the rights of defence of the persons subject to the proceedings are to be fully respected, granting them access to ESMA's file subject to other persons' legitimate interest in protecting business secrets, while excluding confidential information or ESMA's internal preparatory documents from that access.

Cited: Art. 36c, v2

Article 36c
Hearing of the persons subject to the proceedings
1.
Before taking any decision imposing a fine and/or periodic penalty payment under Article 36a or points (a) to (d) of Article 36b(1), ESMA's Board of Supervisors shall give the persons subject to the proceedings the opportunity to be heard on ESMA's findings. ESMA's Board of Supervisors shall base its decisions only on findings on which the persons subject to the proceedings have had the opportunity to comment.
2.
The rights of defence of the persons subject to the proceedings shall be fully respected during the proceedings. They shall be entitled to have access to ESMA's file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information or internal preparatory documents of ESMA.