LegalizeCommission Implementing Regulation (EU) 2024/2545 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
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 Regulations (EU) No 1093/2010 and (EU) No 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937 (1), and in particular Article 95(11), third subparagraph, thereof,
Whereas:
(1) Markets in crypto-assets are inherently cross-border. It is therefore necessary to ensure that competent authorities in different Member States can cooperate and exchange information that enables them to effectively supervise issuers and offerors of crypto-assets and crypto-asset service providers operating across the Union. Competent authorities should have access to the information necessary to allow the effective discharge of their supervisory, investigative and enforcement duties and functions.
(2) To ensure that competent authorities are able to cooperate and to exchange information in an efficient and timely manner and to provide assistance to each other for the purposes of Regulation (EU) 2023/1114, it is appropriate to set out common procedures, forms and templates for the submission of requests for assistance, acknowledgments of receipts and replies to such requests.
(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 requesting party.
(4) Urgent requests for cooperation or exchange of information should be allowed where a prompt response is required by the requesting authority in order to stop significant harm or to prevent potential significant harm to investors or to the stability of and trust in the financial system. This includes cases where, for instance, the competent authority of a host Member State recently obtained evidence showing that a crypto-asset service provider authorised in another Member State is marketing crypto-assets which are not compatible with the provisions on protection of clients or retail holders set out in Article 102 of Regulation (EU) 2023/1114. Urgent requests should also be allowed where a competent authority of a host Member State has received relevant complaints relating to a crypto-asset service provider authorised in another Member State or where a competent authority has reasons to believe that a crypto-asset service provider operating in its jurisdiction is at risk of insolvency, which may affect clients in its jurisdiction or the stability of financial markets.
(5) Regulation (EU) 2023/1114 establishes that competent authorities are to cooperate with each other, exchange information and render assistance to each other.
(6) Unsolicited transmissions of information should be provided for in accordance with Regulation (EU) 2023/1114, including on a voluntary basis when the competent authority of a Member State considers that information in its possession may be of use to another competent authority. When transmitting unsolicited information, the competent authority should ensure that is has a legal basis to do so, and indicate it in the form set out in the relevant Annex.
(7) A request for assistance pursuant to Article 95 of Regulation (EU) 2023/1114 should provide sufficient information about the subject matter of the request, including the reason for the request and its context, to enable the requested authority to process the request efficiently and expediently. It should not be necessary for a requesting authority to indicate the facts giving rise to the suspicion of infringement that prompted the request where the requested information is necessary for that authority to fulfil its duties.
(8) The procedures for cooperation should allow and facilitate the communication, consultation and interaction between the requesting authority and the requested authority, to ensure an efficient processing of requests for information or assistance. These procedures should also allow competent authorities to provide each other with feedback on the usefulness of the information or assistance received, on the outcome of the case in relation to which the assistance was sought, and on any problems encountered in providing such information or assistance.
(9) The procedures and forms for the exchange of information and assistance should ensure the confidentiality of the information exchanged or transmitted and compliance with the rules on the protection of the rights of individuals with regard to the processing of personal data and on the free movement of such data.
(10) This Regulation is based on the draft implementing technical standards developed by the European Securities and Markets Authority (ESMA) in close cooperation with European Banking Authority (EBA) and submitted to the Commission.
(11) ESMA has requested the advice of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council (2).
(12) 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 competent authorities and entities and would not affect market participants,
HAS ADOPTED THIS REGULATION:
Article 1
Definition
For the purposes of this Regulation, ‘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.
Article 2
Contact points
Each competent authority shall designate a contact point for the purposes of the communication of requests for cooperation or exchange of information pursuant to Article 95 of Regulation (EU) 2023/1114.
Competent authorities shall communicate the details of their contact points to ESMA by 15 January 2025 and shall provide updated information to ESMA as necessary.
ESMA shall maintain and keep up to date a list of the contact points designated by competent authorities pursuant to paragraph 1.
Article 3
Request for cooperation or exchange of information
A requesting authority shall make a request for cooperation or exchange of information in writing, by post or by electronic means. It shall address the request to the contact point designated pursuant to Article 2.
When requesting cooperation or the exchange of information, a competent authority shall use the form set out in Annex I and shall:
(a) specify the details of the relevant information requested;
(b) identify, where appropriate, issues relating to the confidentiality of the information requested.
Article 4
Acknowledgment of receipt of requests for cooperation or exchange of information
Within 5 working days of receipt of a request for cooperation or exchange of information, the requested authority shall send an acknowledgement of receipt, by post or by electronic means, to the contact point designated pursuant to Article 2, unless otherwise specified in the request. The acknowledgement of receipt shall be made by using the form set out in Annex II and shall include, where possible, an indication of the estimated date or timeframe in which a reply is expected to be provided.
Where it is not possible to indicate an estimated date or timeframe for the reply, the requested authority shall indicate the frequency with which it will update the requesting authority.
Article 5
Reply to a request for cooperation or exchange of information
The requested authority shall reply to a request for cooperation or exchange of information in writing, by post or by electronic means. The reply shall be addressed to the contact point designated pursuant to Article 2, unless otherwise specified in the request. Where the requested authority requires additional information in relation to the request for cooperation or exchange of information, it shall request further clarifications promptly by any means.
The requested authority shall reply to the request for cooperation or exchange of information using the form set out in Annex III and shall:
(a) take all reasonable steps within the scope of its powers to provide the requested information or assistance;
(b) act without undue delay, taking into account the complexity of the request and the necessity to involve third parties or another competent authority.
Where the requested authority refuses to act, in full or in part, upon a request for cooperation or exchange of information, it shall inform the requesting authority as soon as possible of its decision in writing, either by post or by electronic means, indicating which of the grounds for refusal set out in Article 95(2) of Regulation (EU) 2023/1114 it has relied upon.
Article 6
Urgent requests for cooperation or exchange of information
By way of derogation from Articles 4 and 5, the procedure in this Article shall apply to urgent requests for cooperation or exchange of information.
The requesting authority shall specify, in a clear manner, the reasons for the urgency of the request, using the form set out in Annex I.
By way of derogation from paragraph 2, the requesting authority may initially communicate the information orally where this is justified by the concrete circumstances that prompted the request. That oral submission shall be subsequently confirmed in writing and transmitted to the requested authority without undue delay using the form set out in Annex I, unless the requested authority agrees otherwise.
Within 3 working days of receipt of an urgent request for cooperation or exchange of information, the requested authority shall send an acknowledgement of receipt in writing, by post or by electronic means, to the contact point designated pursuant to Article 2, unless otherwise specified in the request, using the form set out in Annex II.
If the requested authority disagrees with the urgency of the request, it shall inform the requesting authority thereof together with the acknowledgement of receipt, detailing its reasons in a clear manner and using the form set out in Annex II. In such case, the request shall not be treated as an urgent request for cooperation or exchange of information.
Where the requested authority refuses to act, in full or in part, upon an urgent request for cooperation or exchange of information, it shall inform the requesting authority as soon as possible of its decision in writing, by post or by electronic means, indicating which of the grounds for refusal set out in Article 95(2) of Regulation (EU) 2023/1114 it has relied upon.
The requested authority shall provide a precise and comprehensive reply as soon as possible and no later than 10 working days from the receipt of the request. The reply shall be provided in writing, by post or by electronic means, using the form set out in Annex III, unless the requesting authority agrees otherwise.
Where the requested authority is unable to provide the requesting authority with a precise and comprehensive reply within 10 working days, it shall, by way of derogation from paragraph 7, provide a partial reply within that deadline. In that case, the requested authority shall provide a precise and comprehensive reply within 20 working days from the date of the receipt of the original request. Where the requested authority is unable to gather all necessary information within that deadline, it shall provide to the requesting authority an explanation of the relevant constraints.
Article 7
Procedures for sending and processing a request for cooperation or exchange of information
The requesting authority and the requested authority shall communicate using the most expedient means, taking due account of the following:
(a) confidentiality considerations;
(b) correspondence times;
(c) the volume of material to be communicated;
(d) the ease of access to the information by the requesting authority.
The requesting authority shall reply promptly to any request for clarifications from the requested authority.
Where a reply cannot be provided by the estimated date or timeframe referred to in Article 4(1), the requested authority shall give a new estimated date or timeframe to the requesting authority explaining the reasons for the delay, using the same means used to acknowledge receipt of the request.
The requested authority and the requesting authority shall cooperate in order to resolve any difficulties that may arise in executing a request.
Article 8
Procedure for requests concerning the taking of a statement from a person
Where the requesting authority includes within its request the taking of a statement from any person, the requested authority and the requesting authority shall, subject to existing legal limitations or constraints and any differences in procedural requirements, assess and take into account the following:
(a) the rights of the persons from whom the statements are to be taken including, where applicable, any self-incrimination issues;
(b) the role and the nature of participation of the staff of the requested authority and requesting authority in the taking of the statement, in particular whether the participation is active or passive;
(c) whether the person from whom the statement is to be taken has the right to be assisted by a legal representative and, if so, the scope of the legal representative’s assistance during the taking of the statement, including in relation to any records or report of the statement;
(d) whether the statement is to be taken on a voluntary or mandatory basis, where that distinction exists;
(e) whether, based on the information available at the time of the request, the person from whom the statement is to be taken is a witness or a suspect, where that distinction exists;
(f) whether, based on the information available at the time of the request, the statement could be or is intended to be used in criminal proceedings;
(g) the admissibility of the statement in the requesting authority’s jurisdiction;
(h) the recording of the statement and the applicable procedures, including whether the statement will be contemporaneous, summarised in written minutes or recorded by audio or audiovisual means;
(i) procedures on the certification or confirmation of the statement by the persons providing the statement, including whether such certification or confirmation takes place after the statement is taken; and
(j) the procedure for the transmission of the statement to the requesting authority, including the format of and timing for such transmission.
The requested authority and the requesting authority shall ensure that arrangements are in place which allow their staff to proceed efficiently and to agree on the following:
(a) planning of dates;
(b) the list of questions to be asked to the person from whom the statement is to be taken;
(c) travelling arrangements, including ensuring that the requested authority and the requesting authority are able to meet to discuss the matter prior to the taking of the statement;
(d) language arrangements;
(e) any other practical issue that might arise in connection to taking of a statement.
Article 9
Procedure for requests concerning an investigation or an on-site inspection
Where a request to carry out an investigation or an on-site inspection is made pursuant to Article 95(4) of Regulation (EU) 2023/1114, the requesting authority and the requested authority shall consult each other on the best way to give useful effect to the request, taking into account Article 95(4), second subparagraph, points (a) to (d), of Regulation (EU) 2023/1114, including on the merits of conducting a joint investigation or a joint on-site inspection.
The requested authority shall keep the requesting authority informed of the progress of the investigation or on-site inspection and shall transmit its findings promptly to the requesting authority.
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