On 24 May 2013, the European Securities and Markets Authority published a request for technical advice from the European Commission on possible delegated acts relating to the procedural rules for taking supervisory measures and imposing fines on trade repositories (TRs) under the Regulation on OTC derivatives, central counterparties and trade repositories (EMIR).

ESMA has direct registration and supervisory powers over TRs under EMIR, including the power to impose fines and periodic penalty payments on TRs. It is invited to provide technical advice to assist the Commission in formulating a Regulation on rules of procedure for the exercise of those powers and on rules on limitation periods. Among other things, the mandate invites ESMA to:

  • Reflect on procedures to guarantee the rights of the defence during and on completion of investigations, and advise on a reasonable time limit for submitting written submissions.
  • Advise on the procedure for oral hearings.
  • Advise on the procedures regarding access to the files for those subject to the investigations.
  • Advise on the documents to be submitted by the investigating officer to ESMA, so that ESMA is informed of all relevant facts.
  • Advise on the limitation periods for the imposition of penalties and for the enforcement of penalties.
  • Reflect on the methods for collecting fines and periodic penalty payments.

ESMA has until 31 December 2013 to deliver its advice to the Commission.