Where, in carrying out its duties under this Regulation, ESMA finds that there are serious indications of the possible existence of facts liable to constitute one or more of the infringements listed in Article 60(1), ESMA shall appoint an independent investigating officer within ESMA to investigate the matter. The investigating officer shall not be involved or have been involved in the direct or indirect supervision or registration process of the external reviewer concerned and shall perform his or her functions independently from ESMA’s Board of Supervisors.

The investigating officer shall investigate the alleged infringements, taking into account any comments submitted by the persons subject to investigation, and shall submit a complete file with his or her findings to ESMA’s Board of Supervisors.

In order to carry out his or her tasks, the investigating officer may exercise the power to require information in accordance with Article 54 and to conduct investigations and on-site inspections in accordance with Articles 55 and 56. When using those powers, the investigating officer shall comply with Article 57.

Where carrying out his or her tasks, the investigating officer shall have access to all documents and information gathered by ESMA in its supervisory activities.

Upon completion of his or her investigation and before submitting the file with his or her findings to ESMA’s Board of Supervisors, the investigating officer shall give the persons subject to an investigation the opportunity to be heard on the matters being investigated. The investigating officer shall base his or her findings only on facts on which the persons subject to investigation have had the opportunity to comment.

The rights of defence of the persons concerned shall be fully respected during investigations under this Article.

Upon submission of the file with his or her findings to ESMA’s Board of Supervisors, the investigating officer shall notify that fact to the persons who are subject to investigations. The persons subject to investigations shall be entitled to have access to the file, subject to the legitimate interest of other persons in the protection of their professional secrets. The right of access to the file shall not extend to confidential information affecting third parties.

On the basis of the file containing the investigating officer’s findings and, when requested by the persons concerned, after having heard those persons in accordance with Article 64, ESMA shall decide if one or more of the infringements listed in Article 60(1) has been committed by the persons subject to an investigation, and in such a case, shall take a supervisory measure in accordance with Article 59 and impose a fine in accordance with Article 60.

The investigating officer shall not participate in the deliberations of ESMA’s Board of Supervisors or in any other way intervene in its decision-making process.

The Commission shall adopt delegated acts in accordance with Article 68 by 21 December 2024 to supplement this Regulation by further specifying the procedure for the exercise of ESMA’s power to impose fines or periodic penalty payments, including provisions on the rights of defence, temporal provisions, the collection of fines or periodic penalty payments, and detailed rules on the limitation periods for the imposition and enforcement of penalties.

ESMA shall refer matters for criminal prosecution to the relevant national authorities where, in carrying out its duties under this Regulation, it finds that there are serious indications of the possible existence of facts liable to constitute criminal offences. In addition, ESMA shall refrain from imposing fines or periodic penalty payments where a prior acquittal or conviction arising from identical facts, or from facts which are substantially the same, has acquired the force of res judicata as the result of criminal proceedings under national law.