in force 2022-01-01 INSERTED+2,683 −0§
Amended by Regulation (EU) 2019/2175 32019R2175 · Regulation (EU) 2022/858 32022R0858
applies from: unknown (an inserted provision states its own application date only in prose)
Sources disagree — the text comparison found this change; the EU's own amendment metadata does not list it. Both are shown; neither is overruled.
This provision is newly inserted and gives ESMA power to require certain persons, including APAs, CTPs, ARMs, investment firms or market operators operating trading venues, and their controllers, managers, auditors and advisors, to supply information needed for ESMA to carry out its duties under this Regulation.
The text sets out separate content requirements for a simple request versus a request made by decision, and addresses who must supply the information, the role of lawyers acting on clients' behalf, and ESMA's obligation to send a copy of the request or decision to the competent authority of the person's Member State.
Cited: Art. 38b, v2
text before / after
inserted text (02014R0600-20220101)
Article 38b Request for information 1. ESMA may by simple request or by decision require the following persons to provide all information to enable ESMA to carry out its duties under this Regulation: (a) an APA, a CTP, an ARM, where they are supervised by ESMA, and an investment firm or a market operator operating a trading venue to operate the data reporting services of an APA, a CTP or an ARM, and the persons that control them or are controlled by them; (b) the managers of the persons referred to in point (a); (c) the auditors and advisors of the persons referred to in point (a); 2. Any simple request for information referred to in paragraph 1 shall: (a) refer to this Article as the legal basis of that request; (b) state the purpose of the request; (c) specify the information required; (d) include a time limit within which the information is to be provided; (e) include a statement that there is no obligation on the person from whom the information is requested to provide that information but that in the event of a voluntary reply to the request, the information provided must not be incorrect or misleading; (f) indicate the amount of the fine to be imposed in accordance with Article 38h where the information provided is incorrect or misleading. 3. When requiring to supply information under paragraph 1 by decision, ESMA shall: (a) refer to this Article as the legal basis of that request; (b) state the purpose of the request; (c) specify the information required; (d) set a time limit within which the information is to be provided; (e) indicate the periodic penalty payments provided for in Article 38i where the production of the required information is incomplete; (f) indicate the fine provided for in Article 38h, where the answers to questions asked are incorrect or misleading; (g) indicate the right to appeal the decision before ESMA’s Board of Appeal and to have the decision reviewed by the Court of Justice of the European Union (Court of Justice) in accordance with Articles 60 and 61 of Regulation (EU) No 1095/2010. 4. The persons referred to in paragraph 1 or their representatives and, in the case of legal persons or associations having no legal personality, the persons authorised to represent them by law or by their statutes shall supply the information requested. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading. 5. ESMA shall, without undue delay, send a copy of the simple request or of its decision to the competent authority of the Member State of the persons referred to in paragraph 1.