(1)

Regulation (EU) No 648/2012 empowers the Commission to lay down 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 trade repositories and persons involved in trade repositories. In the application of this Regulation, account should be taken of ESMA's organisational rules laid down in Regulation (EU) No 1095/2010 of the European Parliament and of the Council (2), including, in particular, the delegation of certain clearly defined tasks and decisions to internal committees or panels in accordance with Article 41 of Regulation (EU) No 1095/2010, whilst fully respecting the rights of defence of persons subject to investigation and the principle of collegiality that governs ESMA's operations.

(2)

The right to be heard is recognised in the Charter of Fundamental Rights. In order to respect the rights of defence of trade repositories 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 trade repositories or any other persons concerned. Persons subject to the investigations should therefore be granted the right to make written submissions in response to statements of findings issued by the investigation officer and ESMA, including in case of material change in the initial statement of findings.

(3)

Following the written submissions by the trade repository to the investigation officer, the complete file, including those submissions, should be submitted to ESMA. However, it may occur that some elements of the written submissions that the trade repository made to the investigation officer or to ESMA, are not sufficiently clear or detailed, and that they need to be further explained by the trade repository. Should the investigation officer or ESMA consider that this is the case, the trade repository or the persons subject to investigation may be invited to attend an oral hearing to clarify those elements.

(4)

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 the Charter of Fundamental Rights of the European Union. Articles 64(5) and 67 of Regulation (EU) No 648/2012 establish that, persons subject to ESMA proceedings, are entitled to have access to ESMA's file, subject to the legitimate interest of other persons to protect their business secrets and their personal data. The right of access to the file should not extend to confidential information.

(5)

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 relating to securities, or generally in their general administrative laws. It is therefore appropriate to base rules on limitations periods on common features that have been extracted from those national rules and from Union legislation.

(6)

Regulation (EU) No 648/2012 and this Regulation refer to time periods and dates. This is the case, for instance, 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 for acts of the Council and the Commission as provided for in Regulation (EEC, Euratom) No 1182/71 of the Council (4) for acts of the Council and the Commission.

(7)

Article 68(4) of Regulation (EU) No 648/2012 provides that penalties imposed by ESMA pursuant to Articles 65 and 66 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 Union.

(8)

In the interest of the immediate exercise of effective supervisory and enforcement activity, this Regulation should enter into force as a matter of urgency,