Commission Delegated Regulation (EU) 2021/732 of 26 January 2021 amending Delegated Regulation (EU) No 667/2014 with regard to the content of the file to be submitted by the investigation officer to the European Securities and Markets Authority, the right to be heard with regard to interim decisions and the lodging of fines and periodic penalty payments (Text with EEA relevance)

‘1 The complete file to be submitted by the investigation officer to ESMA shall include the following documents: (a) the statement of findings and a copy of the statement of findings addressed to the person subject to the investigation; (b) a copy of the written submissions by the person subject to the investigation; (c) the minutes of any oral hearing.’;

1 By way of derogation from Articles 2 and 3, the procedure set out in this Article shall apply where ESMA adopts interim decisions pursuant to the second subparagraph of Article 67(1) of Regulation (EU) No 648/2012.

2 The investigation officer shall submit the file with his or her findings to ESMA and immediately inform the person subject to investigation of his or her findings but shall not provide that person with the opportunity to make submissions. The statement of findings of the investigation officer shall set out the facts liable to constitute one or more of the infringements listed in Annex I to Regulation (EU) No 648/2012, including any aggravating or mitigating factors of those infringements. Where so requested, the investigation officer shall grant access to the file to the person subject to investigation.

3 Where ESMA considers that the facts described in the statement of findings of the investigation officer appear not to constitute an infringement listed in Annex I to Regulation (EU) No 648/2012, it shall decide to close the investigation and notify that decision to the person subject to investigation.

4 Where ESMA decides that one or more of the infringements listed in Annex I to Regulation (EU) No 648/2012 has been committed by a person subject to investigation and adopts an interim decision imposing supervisory measures as laid down in Article 73(1), points (a), (c) and (d), of Regulation (EU) No 648/2012, ESMA shall immediately notify that interim decision to that person. ESMA shall set a reasonable time limit within which the persons subject to investigation may make written submissions on the interim decision. ESMA shall not be obliged to take into account written submissions received after the expiry of that time limit. Where so requested, ESMA shall grant access to the file to the persons subject to the investigation. ESMA may invite the persons subject to investigation to attend an oral hearing. The persons subject to investigation may be assisted by their lawyers, or by other qualified persons admitted by ESMA. Oral hearings shall not be held in public.

5 ESMA shall hear the person subject to the investigation and take a final decision as soon as possible after the adoption of the interim decision. Where ESMA considers, based on the complete file and after having heard the persons subject to investigation, that one or more of the infringements listed in Annex I to Regulation (EU) No 648/2012 has been committed by the person subject to investigation, it shall adopt a confirmatory decision imposing one or more of the supervisory measures laid down in Article 73(1), points (a), (c) and (d), of Regulation (EU) No 648/2012. ESMA shall immediately notify the person concerned of that decision. Where ESMA adopts a final decision that does not confirm the interim decision, the interim decision shall be deemed to be repealed.’;

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.