Article 59
Supervisory measures by ESMA
1.
Where, in accordance with Article 63(8), ESMA finds that a person has committed an infringement listed in Article 60(1), it shall adopt a decision to take one or more of the following actions:
(a)
withdraw the registration of an external reviewer;
(b)
withdraw the recognition of a third-country external reviewer;
(c)
temporarily prohibit the external reviewer from pursuing the activities under this Regulation throughout the Union, until the infringement has been brought to an end;
(d)
suspend the registration of a third-country external reviewer;
(e)
require the person to bring the infringement to an end;
(f)
impose fines pursuant to Article 60;
(g)
impose periodic penalty payments pursuant to Article 61;
(h)
issue a public notice.
2.
ESMA shall withdraw the registration or the recognition of an external reviewer in any of the following circumstances:
(a)
the external reviewer has expressly renounced the registration or recognition or has not made use of the registration or recognition within 36 months of the registration or recognition being granted;
(b)
the external reviewer has obtained the registration or recognition by making false statements or by any other irregular means;
(c)
the external reviewer no longer meets the conditions under which it was registered or recognised.
Where ESMA withdraws the registration or recognition of the external reviewer, it shall provide full reasons in its decision.
The withdrawal shall have immediate effect.
3.
For the purposes of 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 by intent or negligence;
(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 the interests of investors;
(g)
the importance of the profits gained or losses avoided by the person responsible for the infringement or the losses for third parties caused by the infringement, to the extent that they can be determined;
(h)
the level of cooperation with ESMA of the person responsible for the infringement, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person;
(i)
previous infringements of this Regulation by the person responsible for the infringement;
(j)
any measures taken after the infringement by the person responsible for the infringement to prevent its repetition.
4.
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 of the date when the decision as referred to in paragraph 1 was adopted.
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 decision in accordance with Article 60(3) of Regulation (EU) No 1095/2010.