Article 38g
Supervisory measures by ESMA
1.
Where ESMA finds that a person listed in Article 38b(1), point (a), has not complied with any of the requirements laid down in Articles 20 to 22c, or in Title IVa, it shall take one or more of the following actions:
(a)
adopt a decision requiring the person to bring the infringement to an end;
(b)
adopt a decision imposing fines or periodic penalty payments pursuant to Articles 38h and 38i;
(c)
issue public notices.
2.
When taking the actions referred to in paragraph 1, ESMA 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 financial crime has been occasioned, facilitated or otherwise attributable to the infringement;
(c)
whether the infringement has been committed intentionally or negligently;
(d)
the degree of responsibility of the person responsible for the infringement;
(e)
the financial strength of the person responsible for the infringement, as indicated by the total turnover of the responsible legal person or the annual income and net assets of the responsible natural person;
(f)
the impact of the infringement on investors’ interests;
(g)
the importance of the profits gained, losses avoided by the person responsible for the infringement or the losses for third parties derived from the infringement, insofar as they can be determined;
(h)
the level of cooperation of the person responsible for the infringement with ESMA, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person;
(i)
previous infringements by the person responsible for the infringement;
(j)
measures taken after the infringement by the person responsible for the infringement to prevent its repetition.
3.
Without undue delay, ESMA shall notify any action taken pursuant to paragraph 1 to the person responsible for the infringement, and shall communicate it to the competent authorities of the Member States and to the Commission. It shall publicly disclose any such action on its website within 10 working days from the date when it was taken.
The disclosure to the public referred to in the first subparagraph shall include the following:
(a)
a statement affirming the right of the person responsible for the infringement to appeal the decision;
(b)
where relevant, a statement affirming that an appeal has been lodged and specifying that such an appeal does not have suspensive effect;
(c)
a statement asserting that it is possible for ESMA’s Board of Appeal to suspend the application of the contested decision in accordance with Article 60(3) of Regulation (EU) No 1095/2010.