Article 3
Right to be heard by ESMA’s Board of Supervisors with regard to fines and supervisory measures
1. The complete file to be submitted by the investigating officer to ESMA’s Board of Supervisors shall include at least the following documents:
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copy of the statement of findings that he addressed to the credit rating agency, |
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copy of the written submissions by the credit rating agency, |
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minutes of any oral hearing. |
2. Where ESMA’s Board of Supervisors considers that the file submitted by the investigating officer is not complete, it shall send back the file to the investigating officer with reasoned request for additional documents.
3. Where ESMA’s Board of Supervisors considers, on the basis of a complete file, that the facts, described in the statement of findings, appear not to disclose any possible infringement of the ones listed in Annex III to Regulation (EC) No 1060/2009, it shall take a decision to close the case and it shall notify such a decision to the persons subject to investigation.
4. Where ESMA’s Board of Supervisors does not agree with the findings of the investigating officer it shall submit a new statement of findings to the persons subject to investigation.
The statement of findings shall set a reasonable time limit within which the persons subject to investigation may make written submissions. ESMA’s Board of Supervisors shall not be obliged to take into account written submissions received after the expiry of that time limit for adopting a decision on the existence of an infringement and on supervisory measures and the imposition of a fine in accordance with Articles 24 and 36a of Regulation (EC) No 1060/2009.
ESMA’s Board of Supervisors may also invite the persons subject to investigation to which a statement of findings has been addressed to attend an oral hearing. The persons subject to investigation may be assisted by their lawyers or other qualified persons admitted by ESMA’s Board of Supervisors. Oral hearings shall not be held in public.
5. Where ESMA’s Board of Supervisors agrees with the findings of the investigating officer it shall inform the persons subject to investigation accordingly. Such communication shall set a reasonable time limit within which the person subject to investigation may make written submissions. ESMA’s Board of Supervisors shall not be obliged to take into account written submissions received after the expiry of that time limit for adopting a decision on the existence of an infringement and on supervisory measures and the imposition of a fine in accordance with Articles 24 and 36a of Regulation (EC) No 1060/2009.
ESMA’s Board of Supervisors may also invite the persons subject to investigation to which a statement of findings has been addressed to attend an oral hearing. The persons subject to investigation may be assisted by their lawyers or other qualified persons admitted by ESMA’s Board of Supervisors. Oral hearings shall not be held in public.
6. If ESMA’s Board of Supervisors has decided that one or more of the infringements listed in Annex III to Regulation (EC) No 1060/2009 has been committed by a person subject to investigation and has adopted a decision imposing a fine in accordance with Article 36a, it shall notify immediately such decision to the person subject to investigation.