in force 2022-01-01 INSERTED+1,078 −0§
Amended by Regulation (EU) 2019/2175 32019R2175
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 is a new article establishing that before ESMA decides under Articles 48f, 48g or 48e, it must give persons subject to the proceedings a chance to be heard, basing its decisions only on findings those persons could comment on, with an exception allowing an interim decision plus later hearing where urgent action under Article 48e is needed to prevent significant and imminent damage to the financial system.
The new provision also states that the rights of defence of persons subject to the proceedings are to be fully respected, granting them access to ESMA's file subject to protection of other persons' business secrets, while excluding confidential information and ESMA's internal preparatory documents from that access.
Cited: Art. 48j, v2
text before / after
inserted text (02016R1011-20220101)
Article 48j Hearing of the persons subject to investigations 1. Before taking any decision pursuant to Articles 48f, 48g and 48e, ESMA shall give the persons subject to the proceedings the opportunity to be heard on its findings. ESMA shall base its decisions only on findings on which the persons subject to the proceedings have had an opportunity to comment. The first subparagraph shall not apply if urgent action pursuant to Article 48e is needed in order to prevent significant and imminent damage to the financial system. In such a case ESMA may adopt an interim decision and shall give the persons concerned the opportunity to be heard as soon as possible after taking its decision. 2. The rights of the defence of the persons subject to the proceedings shall be fully respected in the investigations. 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 ESMA’s internal preparatory documents.