Article 46
Cooperation between competent authorities
1.
Competent authorities shall cooperate with each other for the purposes of this Regulation. They shall exchange information without undue delay and cooperate in investigation, supervision and enforcement.
Member States that have chosen, in accordance with Article 49(5), to lay down criminal penalties for infringements of this Regulation shall ensure that appropriate measures are in place so that competent authorities have all the necessary powers to liaise with judicial authorities within their jurisdiction to receive specific information related to criminal investigations or legal proceedings initiated for alleged infringements of this Regulation and provide the same to other competent authorities to fulfil their obligation to cooperate with each other for the purposes of this Regulation.
2.
A competent authority may refuse to act on a request for information or a request to cooperate with an investigation only in any of the following exceptional circumstances:
(a)
where complying with the request is likely to adversely affect its own investigation, enforcement activities or a criminal investigation;
(b)
where legal proceedings have already been initiated in respect of the same actions and against the same persons before the relevant authorities of that competent authority’s Member State;
(c)
where a final judgment has already been delivered in respect of the persons referred to in point (b), for the same actions in that competent authority’s Member State.
3.
Competent authorities may request assistance from the competent authority of another Member State with regard to on-site inspections or investigations.
Where a competent authority receives a request from a competent authority of another Member State to carry out an on-site inspection or an investigation, it may do any of the following:
(a)
carry out the on-site inspection or investigation itself;
(b)
allow the competent authority which submitted the request to participate in an on-site inspection or investigation;
(c)
allow the competent authority which submitted the request to carry out the on-site inspection or investigation itself;
(d)
appoint auditors or experts to carry out the on-site inspection or investigation;
(e)
share specific tasks related to supervisory activities with the other competent authorities.
4.
In the case of a securitisation bond, where a competent authority referred to in Article 44(2) finds, or has reason to believe, that an obligation under Title II, Chapter 2, or Article 18 or 19 has not been complied with, it shall inform the competent authority of the Member State of the entity or entities suspected of such non-compliance of its findings in a sufficiently detailed manner. Upon receipt of that information, the competent authority of the Member State of the entity suspected of the non-compliance shall, within 15 working days, take any necessary action to address the non-compliance identified and notify the other competent authority involved. When a competent authority referred to in Article 44(2) disagrees with another competent authority regarding the procedure or content of its action or inaction, it shall notify all other competent authorities involved about its disagreement without undue delay.
5.
The competent authorities may bring the matter to the attention of ESMA in situations where a request for cooperation, in particular to exchange information, has been rejected or has not been acted upon within a reasonable time. Without prejudice to Article 258 TFEU, ESMA may in such situations act in accordance with the power conferred on it by Article 19 of Regulation (EU) No 1095/2010.
6.
ESMA may develop draft regulatory technical standards to specify the information to be exchanged in accordance with paragraph 1.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
7.
ESMA may develop draft implementing technical standards to establish standard forms, templates and procedures for the purposes of the cooperation and exchange of the information referred to in paragraph 1.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010.