LegalizeCommission Implementing Regulation (EU) 2024/2494 of 24 September 2024 laying down implementing technical standards for the application of Regulation (EU) 2023/1114 of the European Parliament and of the Council with regard to standard forms, templates and procedures for the cooperation and exchange of information between competent authorities and EBA and ESMA
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets and amending Regulation (EU) No 1093/2010 and (EU) No 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937 (1), and in particular Article 96(3), third subparagraph, thereof,
Whereas:
(1) Article 96(1) of Regulation (EU) 2023/1114 requires the competent authorities to cooperate closely with the European Securities and Markets Authority (ESMA), established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council (2), and with the European Banking Authority (EBA), established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council (3).
(2) Article 96(2) of Regulation (EU) 2023/1114 requires competent authorities to provide ESMA and EBA with all necessary information to carry out their duties, in accordance with Article 35 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council and with Article 35 of Regulation (EU) No 1093/2010 respectively.
(3) Information should normally be exchanged in writing. However, oral communications should be possible in appropriate cases, including, in particular, before a written request for cooperation or exchange of information is sent, to provide information on an upcoming request for cooperation or exchange of information, or to discuss any issues that might make it difficult to comply with that request. In urgent cases, it should also be possible to orally communicate a request for cooperation or exchange of information, provided that such urgency is not due to a delay on the part of the submitting party.
(4) Information that is not the subject of a specific request should be transmitted in accordance with Regulation (EU) 2023/1114, including on a voluntary basis, when the submitting body considers that information in its possession may be of use to another body. When transmitting unsolicited information, the submitting body should indicate the provision of Regulation (EU) 2023/1114 under which it transmits that information in the form set out in the relevant Annex.
(5) A request should contain sufficient information about the subject matter of the cooperation or exchange of information and include the reasons for the request and its context, to enable the receiving body to easily and efficiently process the request. It should not be necessary for a submitting body to indicate the facts giving rise to the suspicion of infringement of Regulation EU) 2023/1114 that prompted the request where the requested information is necessary for that body to fulfil its duties.
(6) The procedure as well as the forms and templates used for the exchange of information and the provision of cooperation should ensure that any information exchanged or transmitted is kept confidential, and that rules with regard to the processing of personal data and the free movement of personal data are complied with.
(7) This Regulation is based on the draft implementing technical standards developed by ESMA in close cooperation with EBA and submitted to the Commission.
(8) ESMA has requested the advice of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010,
(9) ESMA has not conducted open public consultations on the draft implementing technical standards on which this Regulation is based, nor has it analysed the potential related costs and benefits of introducing such standards, as to have done so would have been highly disproportionate in relation to the scope and impact of those standards, taking into account that this Regulation would only affect those authorities and entities and would not affect market participants,
HAS ADOPTED THIS REGULATION:
Article 1
Definitions
For the purposes of this Regulation, the following definitions apply:
(1) ‘electronic means’ are means of electronic equipment for the processing (including digital compression), storage and transmission of data, employing wires, radio, optical technologies, or any other electromagnetic means that ensure that the completeness, integrity and confidentiality of the information are maintained during the transmission;
(2) ‘submitting body’ means the body submitting a notification, a request for information or cooperation, or providing unsolicited information;
(3) ‘receiving body’ means the body receiving a notification, a request for information or cooperation, or unsolicited information.
Article 2
Contact points
Each competent authority shall designate a contact point for the purposes of cooperating and exchanging information pursuant to Article 96 of Regulation (EU) 2023/1114.
Competent authorities shall communicate the details of their contact points to ESMA and EBA by 27 November 2024 and keep EBA and ESMA informed of any changes to those details.
ESMA and EBA shall maintain and keep up-to-date a list of the contact points designated in accordance with paragraph 1.
Article 3
Means of communication
For the purposes of cooperation and exchange of information in accordance with Article 96(1) of Regulation (EU) 2023/1114, competent authorities and ESMA and EBA shall communicate in writing either by post or by electronic means, unless otherwise provided for in this Regulation.
When determining the most appropriate means of communication in any particular case, competent authorities, ESMA and EBA shall take due account of the following:
(a) confidentiality considerations;
(b) the time necessary for correspondence;
(c) the volume of material to be communicated;
(d) the ease of access to the information that is being exchanged.
The means of communication referred to in paragraph 1 shall ensure the completeness, integrity and confidentiality of the information during the transmission thereof.
Article 4
Notifications and requests for information or cooperation
Notifications and requests for information or cooperation shall be submitted in writing by post or by electronic means, using the form set out in Annex I. When a competent authority, ESMA or EBA makes a request for information or cooperation pursuant to Article 96 of Regulation (EU) 2023/1114, they shall use the standard form set out in Annex I to this Regulation. The submitting body shall send the notification or request to the contact point designated pursuant to Article 2.
When making a request for information or cooperation, the submitting body:
(a) may attach to the request any document or supporting material deemed necessary to support that request;
(b) may, in urgent cases, make the request orally, but that oral request shall subsequently be confirmed in writing without undue delay.
Article 5
Acknowledgement of receipt of notifications and requests
The receiving body shall send an acknowledgement of receipt to the submitting body as soon as possible and in any case within 5 working days of receipt of a notification or request made pursuant to Article 4, using the form set out in Annex II, and, where possible, indicate an estimated date of response.
Whenever it is not possible to indicate an estimated date of response, the receiving body shall indicate the frequency with which it will update the submitting body.
Article 6
Procedures for sending, processing and replying to a request for cooperation and exchange of information
The submitting body and the receiving body shall ensure that a request for cooperation or exchange of information is dealt with as soon as possible. They shall cooperate to resolve any difficulties that may arise in executing a request.
Where the submitting body attaches to the request for cooperation and exchange of information any document or supporting material in accordance with Article 4(2), point (a), and where such document or supporting material is not in an official language of the Member State of the receiving body, the submitting body shall also provide a translation of such document or supporting material, or a summary of such document or supporting material in a language customary in the sphere of international finance.
If the receiving body requests any clarification about a notification or request submitted in accordance with Article 4, it shall request further clarification promptly by any means.
The submitting body shall respond promptly to any request for clarification from the receiving body.
When replying to a request made in accordance with Article 4, the receiving body shall:
(a) use the form set out in Annex III;
(b) take all reasonable steps to provide the requested cooperation or information
(c) act without delay and in a manner which ensures that any necessary regulatory action can proceed expediently taking into account the complexity of the request concerned and whether it is necessary to involve third parties.
Where appropriate, the receiving body shall provide the submitting body with regular updates on the progress of a pending request, including updates on the revised estimated date of reply.
Where the receiving body becomes aware of circumstances that may lead to a delay in meeting the estimated date or a timeframe of reply, referred to in Article 5(1), by more than 10 working days, it shall inform the submitting body without undue delay.
Where the request justifies closer cooperation between the submitting and the receiving body or where the request has been marked as urgent, the bodies shall agree on the frequency and means of the closer cooperation.
Article 7
Unsolicited cooperation and exchange of information
For the purposes of any cooperation and exchange of information that is not the subject of a specific request, including any subsequent communications relating to it, the submitting body shall use the form set out in Annex IV.
Article 8
Cooperation procedures
Where ESMA or EBA are requested under Article 95(5) of Regulation (EU) 2023/1114 to coordinate an investigation or inspection with cross-border effect, ESMA or EBA may establish a temporary group on an ad hoc basis to include the competent authorities of the Member States affected by that investigation or inspection.
When participating in temporary groups referred to in paragraph 1, ESMA and EBA shall consult each other regularly.
Article 9
Referral to ESMA or to EBA
Referral to ESMA pursuant to Article 95(6) of Regulation (EU) 2023/1114 or to EBA pursuant to Article 95(7) of that Regulation of a rejection or absence of action within a reasonable timeframe shall be made in writing using the form set out in Annex I and shall include:
(a) a copy of the request for cooperation and exchange of information and any reply received;
(b) the reasons for referring to ESMA or to EBA the rejection or absence of action.
Article 10
Restrictions and permissible uses of information
The receiving body shall not disclose the existence and content of a request for cooperation or exchange of information pursuant to Article 96 of Regulation (EU) 2023/1114unless the submitting body has given its express consent to such disclosure. Where such consent is not given and where it is not reasonably practicable to comply with the request without disclosing its existence or content, the submitting body shall withdraw or suspend its request until it is able to provide such consent to disclosure.
The submitting body that received information within the scope of this Regulation shall use it solely for the performance of its duties and the exercise of its functions or for the purposes of securing compliance with or enforcement of Regulation (EU) 2023/1114, including initiating, conducting, or assisting in, criminal, administrative, civil or disciplinary proceedings resulting from a breach of that Regulation.
Article 11
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 September 2024.
For the Commission The President Ursula VON DER LEYEN
(1) OJ L 150, 9.6.2023, p. 40, ELI: http://data.europa.eu/eli/reg/2023/1114/oj.
(2) Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84, ELI: http://data.europa.eu/eli/reg/2010/1095/oj).
(3) Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC ( OJ L 331, 15.12.2010, p. 12, ELI: http://data.europa.eu/eli/reg/2010/1093/oj).
Reading this document does not replace reading the official text published in the Official Journal of the European Union. We assume no responsibility for any inaccuracies arising from the conversion of the original to this format.