(1)

The Commission has been empowered to adopt rules of procedure for the exercise of the power to impose fines or periodic penalty payments by the European Securities and Markets Authority (ESMA) upon credit rating agencies and persons involved in rating activities. Those rules are to be adopted via delegated act and they should include provisions on rights of defence, temporal provisions, provisions on the collection of fines or periodic penalty payments, as well as detailed provisions on the limitation periods for the imposition and enforcement of fines and periodic penalty payments.

(2)

This delegated act specifies rules of procedures to be followed by ESMA when imposing fines and penalty payments as part of its direct supervisory power over credit rating agencies. It is important that such rules of procedure to be followed by an EU regulatory agency are directly applicable and do not require further implementation in national law. Therefore, it is appropriate that the Commission adopts these rules by means of an EU Regulation. Furthermore the objective of having uniform rules on rights of defence for credit rating agencies can only be achieved via Regulation.

(3)

The right to be heard is recognised in point (a) of Article 41(2) of the Charter of Fundamental Rights. In order to respect the rights of defence of credit rating agencies and of other persons subject to action by the European Securities and Markets Authority (ESMA) and to ensure that it takes all relevant facts into account when adopting enforcement decisions, ESMA should hear the credit rating agencies or any other persons concerned. The right to be heard should take place by granting the persons concerned the right to make written submissions in response to statements of findings issued by ESMA’s investigating officer and ESMA’s Board of Supervisors.

(4)

Following the written submissions by the credit rating agency to the investigating officer, the Board of Supervisors will receive a complete file, including those submissions.

(5)

However, it may occur that some elements of the written submissions that the credit rating agency made to the investigating officer or, the case being, to the Board of Supervisors, are not sufficiently clear or detailed, and that they need to be further explained by the credit rating agency. Should the investigating officer or, the case being, the Board of Supervisors, consider that this is the case, ESMA may convoke an oral hearing for the credit rating agency to clarify those elements.

(6)

The right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy is recognised in point (b) of Article 41(2) of the Charter of Fundamental Rights of the European Union. Articles 23e(4), 25(2) and Article 36c(2) of Regulation (EC) No 1060/2009 establish that, safeguard rights of defence of persons subject to the ESMA proceedings, they shall be entitled to have access to ESMA’s file, subject to the legitimate interest of other persons in protecting their business secrets and of their personal data. The right of access to the file should not extend to confidential information.

(7)

Council Regulation (EC) No 1/2003 (3) lays down detailed rules on limitation periods for when the Commission has to fine an undertaking under Article 101 or 102 of the Treaty on the Functioning of the European Union. Legislation in force in Member States also provides for rules on limitation periods either specifically within the securities field, or generally in their general administrative laws. Common features have been extracted from those national rules and from Union legislation and are mainly reflected in Articles 6 and 7 of this Regulation.

(8)

Regulation (EC) No 1060/2009 and this Regulation refer to time periods and dates. This is the case, for instance, for the registration process of credit rating agencies, or when establishing limitation periods for the imposition and enforcement of penalties. To enable those periods to be correctly calculated, it is appropriate to apply rules which already exist within Union legislation, namely, Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (4) for acts of the Council and the Commission.

(9)

Article 36d of Regulation (EC) No 1060/2009 provides that penalties imposed by ESMA pursuant to Articles 36a and 36b of that Regulation shall be enforceable, and that enforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it is carried out. The corresponding amounts shall be allocated to the general budget of the EU.

(10)

In the interest of an immediate exercise of effective supervisory and enforcement activity, this Regulation should enter into force on the third day following that of its publication,