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16.10.2012 Official
Journal
of
the
European
Union L
282/23
COMMISSION DELEGATED REGULATION (EU) No 946/2012
of 12 July 2012
supplementing Regulation (EC) No 1060/2009 of the European Parliament and of the Council with
regard to rules of procedure on fines imposed to credit rating agencies by the European Securities
and Markets Authority, including rules on the right of defence and temporal provisions
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
submissions in response to statements of findings issued
by ESMA’s investigating officer and ESMA’s Board of
Supervisors.
Having regard to the Treaty on the Functioning of the European
Union,
(4) Following
the
written
submissions
by
the
credit
rating
agency to the investigating officer, the Board of Super
visors will receive a complete file, including those
Having regard to Regulation (EC) No 1060/2009 of the
submissions.
European Parliament and of the Council of 16 September
2009 on credit rating agencies ( 1 ), as amended by Regulation
(EU) No 513/2011 ( 2 ), and in particular Article 23e(7) thereof,
(5) However,
it
may
occur
that
some
elements
of
the
written
submissions that the credit rating agency made to the
investigating officer or, the case being, to the Board of
Whereas:
Supervisors, are not sufficiently clear or detailed, and that
they need to be further explained by the credit rating
agency. Should the investigating officer or, the case
(1) The
Commission
has
been
empowered
to
adopt
rules
of
being, the Board of Supervisors, consider that this is
procedure for the exercise of the power to impose fines
the case, ESMA may convoke an oral hearing for the
or periodic penalty payments by the European Securities
credit rating agency to clarify those elements.
and Markets Authority (ESMA) upon credit rating
agencies and persons involved in rating activities. Those
rules are to be adopted via delegated act and they should
(6) The
right
of
every
person
to
have
access
to
his
or
her
file,
include provisions on rights of defence, temporal provi
while respecting the legitimate interests of confidentiality
sions, provisions on the collection of fines or periodic
and of professional and business secrecy is recognised in
penalty payments, as well as detailed provisions on the
point (b) of Article 41(2) of the Charter of Fundamental
limitation periods for the imposition and enforcement of
Rights of the European Union. Articles 23e(4), 25(2) and
fines and periodic penalty payments.
Article 36c(2) of Regulation (EC) No 1060/2009
establish that, safeguard rights of defence of persons
subject to the ESMA proceedings, they shall be entitled
to have access to ESMA’s file, subject to the legitimate
(2) This
delegated
act
specifies
rules
of
procedures
to
be
interest of other persons in protecting their business
followed by ESMA when imposing fines and penalty
secrets and of their personal data. The right of access
payments as part of its direct supervisory power over
to the file should not extend to confidential information.
credit rating agencies. It is important that such rules of
procedure to be followed by an EU regulatory agency are
directly applicable and do not require further implemen
(7) Council
Regulation
(EC)
No
1/2003
( 3 ) lays down
tation in national law. Therefore, it is appropriate that
detailed rules on limitation periods for when the
the Commission adopts these rules by means of an EU
Commission has to fine an undertaking under Article 101
Regulation. Furthermore the objective of having uniform
or 102 of the Treaty on the Functioning of the European
rules on rights of defence for credit rating agencies can
Union. Legislation in force in Member States also
only be achieved via Regulation.
provides for rules on limitation periods either specifically
within the securities field, or generally in their general
administrative laws. Common features have been
(3) The
right
to
be
heard
is
recognised
in
point
(a)
of
extracted from those national rules and from Union
Article 41(2) of the Charter of Fundamental Rights. In
legislation and are mainly reflected in Articles 6 and 7
order to respect the rights of defence of credit rating
of this Regulation.
agencies 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
(8)
Regulation (EC) No 1060/2009 and this Regulation refer
when adopting enforcement decisions, ESMA should
to time periods and dates. This is the case, for instance,
hear the credit rating agencies or any other persons
for the registration process of credit rating agencies, or
concerned. The right to be heard should take place by
when establishing limitation periods for the imposition
granting the persons concerned the right to make written
and enforcement of penalties. To enable those periods to
be correctly calculated, it is appropriate to apply rules
( 1 ) OJ L 302, 17.11.2009, p. 1.
( 2 ) OJ L 145, 31.5.2011, p. 30.
( 3 ) OJ L 1, 4.1.2003, p. 1.

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L 282/24
EN
Official Journal of the European Union
16.10.2012
which already exist within Union legislation, namely,
investigation may be assisted by their lawyers or other qualified
Regulation (EEC, Euratom) No 1182/71 of the Council
persons admitted by the investigating officer. Oral hearings shall
of 3 June 1971 determining the rules applicable to
not be held in public.
periods, dates and time limits ( 1 ) for acts of the Council
and the Commission.
Article 3
(9) Article
36d
of
Regulation
(EC)
No
1060/2009
provides Right to be heard by ESMA’s Board of Supervisors with
that penalties imposed by ESMA pursuant to Articles 36a
regard to fines and supervisory measures
and 36b of that Regulation shall be enforceable, and that
1. The
complete
file
to
be
submitted
by
the
investigating
enforcement shall be governed by the rules of civil
officer to ESMA’s Board of Supervisors shall include at least
procedure in force in the State in the territory of
the following documents:
which it is carried out. The corresponding amounts
shall be allocated to the general budget of the EU.
— copy of the statement of findings that he addressed to the
credit rating agency,
(10) In the interest of an immediate exercise of effective
supervisory and enforcement activity, this Regulation
— copy of the written submissions by the credit rating agency,
should enter into force on the third day following that
of its publication,
— minutes of any oral hearing.
HAS ADOPTED THIS REGULATION:
2. Where
ESMA’s
Board
of
Supervisors
considers
that
the
file
submitted by the investigating officer is not complete, it shall
Article 1
send back the file to the investigating officer with reasoned
Subject matter
request for additional documents.
This Regulation lays down procedural rules regarding fines and
periodic penalty payments to be imposed by the European
3. Where
ESMA’s
Board
of
Supervisors
considers,
on
the
Securities and Markets Authority (ESMA) on credit rating
basis of a complete file, that the facts, described in the
agencies or other persons that are subject to ESMA’s
statement of findings, appear not to disclose any possible
enforcement proceedings, including rules on rights of defence
infringement of the ones listed in Annex III to Regulation
and limitation periods.
(EC) No 1060/2009, it shall take a decision to close the case
and it shall notify such a decision to the persons subject to
investigation.
Article 2
Right to be heard by the investigating officer
4. Where
ESMA’s
Board
of
Supervisors
does
not
agree
with
the findings of the investigating officer it shall submit a new
1. Upon
completion
of
his/her
investigations
and
before statement of findings to the persons subject to investigation.
submitting the file to ESMA’s Board of Supervisors pursuant
to Article 3(1), the investigating officer shall inform the
person subject to investigation in writing of his/her findings
The statement of findings shall set a reasonable time limit
and shall provide it with the opportunity to make written
within which the persons subject to investigation may make
submissions pursuant to paragraph 3. That statement of
written submissions. ESMA’s Board of Supervisors shall not be
findings shall set out the facts liable to constitute one or
obliged to take into account written submissions received after
more of the infringements listed in Annex III to Regulation
the expiry of that time limit for adopting a decision on the
(EC) No 1060/2009, including any aggravating or mitigating
existence of an infringement and on supervisory measures and
factors of these infringements.
the imposition of a fine in accordance with Articles 24 and 36a
of Regulation (EC) No 1060/2009.
2. The
statement
of
findings
shall
set
a
reasonable
time
limit
within which the person subject to investigation may make its
ESMA’s Board of Supervisors may also invite the persons
written submissions. The investigating officer shall not be
subject to investigation to which a statement of findings has
obliged to take into account written submissions received
been addressed to attend an oral hearing. The persons subject to
after that time limit has expired.
investigation may be assisted by their lawyers or other qualified
persons admitted by ESMA’s Board of Supervisors. Oral
hearings shall not be held in public.
3. In
its
written
submissions,
the
person
subject
to
investi
gation may set out all the facts known to it which are relevant
to its defence. It shall attach any relevant documents as proof of
5. Where
ESMA’s
Board
of
Supervisors
agrees
with
the
the facts set out. It may propose that the investigating officer
findings of the investigating officer it shall inform the persons
hear other persons who may corroborate the facts set out in the
subject to investigation accordingly. Such communication shall
submissions of the person subject to investigation.
set a reasonable time limit within which the person subject to
investigation may make written submissions. ESMA’s Board of
Supervisors shall not be obliged to take into account written
4. The
investigating
officer
may
also
invite
a
person
subject submissions received after the expiry of that time limit for
to investigation to which a statement of findings has been
adopting a decision on the existence of an infringement and
addressed to attend an oral hearing. The persons subject to
on supervisory measures and the imposition of a fine in
accordance with Articles 24 and 36a of Regulation (EC)
( 1 ) OJ L 124, 8.6.1971, p. 1.
No 1060/2009.

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EN
16.10.2012 Official
Journal
of
the
European
Union L
282/25
ESMA’s Board of Supervisors may also invite the persons
(b) five years in the case of all other infringements.
subject to investigation to which a statement of findings has
been addressed to attend an oral hearing. The persons subject to
2. The
periods
of
time
referred
to
in
paragraph
1
shall
begin
investigation may be assisted by their lawyers or other qualified
to run on the day following that on which the infringement is
persons admitted by ESMA’s Board of Supervisors. Oral
committed. However, in the case of continuing or repeated
hearings shall not be held in public.
infringements, those periods of time shall begin to run on the
day on which the infringement ceases.
6. If
ESMA’s
Board
of
Supervisors
has
decided
that
one
or
more of the infringements listed in Annex III to Regulation (EC)
3. Any action taken by ESMA for the purpose of the inves
No 1060/2009 has been committed by a person subject to
tigating or proceedings in respect of an infringement of Regu
investigation and has adopted a decision imposing a fine in
lation (EC) No 1060/2009 shall interrupt the limitation period
accordance with Article 36a, it shall notify immediately such
for the imposition of fines. That limitation period shall be inter
decision to the person subject to investigation.
rupted with effect from the date on which the action is notified
to the credit rating agency or the person subject to the inves
Article 4
tigating or proceedings.
Right to be heard by ESMA’s Board of Supervisors with
4. Each
interruption
shall
cause
the
limitation
period
to
start
regard to periodic penalty payments
running afresh. However, the limitation period shall expire at
Before taking a decision imposing a periodic penalty payment
the latest on the day on which a period equal to twice the
according to Article 36b(1) of Regulation (EC) No 1060/2009,
limitation period has elapsed without ESMA having imposed a
the Board of Supervisors shall submit a statement of findings to
fine. That period shall be extended by the time during which
the person subject to the proceedings setting out the reasons
limitation is suspended pursuant to paragraph 5.
justifying the imposition of a penalty payment and the amount
of the penalty payment per day of non-compliance. The
5. The
limitation
period
for
imposing
fines
shall
be
statement of findings shall set a time limit within which the
suspended for as long as the decision of ESMA is the subject
person concerned may make written submissions. The Board of
of proceedings pending before the Board of Appeal, in
Supervisor shall not be obliged to take into account written
accordance with Article 58 of Regulation (EU) No 1095/2010
submissions received after the expiry of that time limit for
of the European Parliament and of the Council ( 1 ), and before
deciding on the periodic penalty payment.
the Court of Justice of the European Union, in accordance with
Article 36e of Regulation (EC) No 1060/2009.
Once the credit rating agency or person concerned has
complied with the relevant decision referred to in paragraphs
Article 7
(a) to (d) of Article 36b(1) of Regulation (EC) No 1060/2009, a
periodic penalty payment can no longer be imposed.
Limitation periods for the enforcement of penalties
1. The
power
of
ESMA
to
enforce
decisions
taken
pursuant
ESMA’s Board of Supervisors may also invite the person subject
to Articles 36a and 36b of Regulation (EC) No 1060/2009 shall
to the proceedings to attend an oral hearing. The person subject
be subject to a limitation period of five years.
to the proceedings may be assisted by their lawyers or other
qualified persons admitted by ESMA’s Board of Supervisors.
2. The
five-year
period
referred
to
in
paragraph
1
shall
start
Oral hearings shall not be held in public.
to run on the day following that on which the decision
becomes final.
Article 5
3. The
limitation
period
for
the
enforcement
of
penalties
Access to the file and use of documents
shall be interrupted by:
1. If so requested, ESMA shall grant access to the file to the
parties to whom the investigating officer or the Board of Super
(a) a notification by ESMA to the credit rating agency or other
visors has sent a statement of findings. Access shall be granted
person concerned of a decision varying the original amount
following the notification of any statement of findings.
of the fine or periodic penalty payment;
2. File
documents
accessed
pursuant
to
this
Article
shall
be
(b) any action of ESMA or a Member State authority acting at
used only for the purposes of judicial or administrative
the request of ESMA, designed to enforce payment or
proceedings concerning the application of Regulation (EC) No
payment terms and conditions of the fine or periodic
1060/2009.
penalty payment.
Article 6
4. Each
interruption
shall
cause
the
limitation
period
to
start
running afresh.
Limitation periods for the imposition of penalties
1. ESMA’s
powers
to
impose
fines
on
credit
rating
agencies 5. The
limitation
period
for
the
enforcement
of
penalties
shall be subject to the following limitation periods:
shall be suspended for so long as:
(a) three years in the case of infringements for which the
(a) time to pay is allowed;
minimum basic amount of the fine foreseen in Article 36a(2)
of Regulation (EC) No 1060/2009 is EUR 50 000 or less.
( 1 ) OJ L 331, 15.12.2010, p. 84.

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L 282/26
EN
Official Journal of the European Union
16.10.2012
(b) enforcement of payment is suspended pursuant to a
these amounts plus any interest accruing to the Commission.
pending decision of ESMA Board of Appeal, in accordance
These amounts shall then be entered in the EU budget under
with Article 58 of Regulation (EU) No 1095/2010, and the
general revenue.
Court of Justice of the European Union, in accordance with
Article 36e of Regulation (EC) No 1060/2009.
ESMA’s Accounting Officer shall report on a regular basis to the
Authorising Officer of DG MARKT on the amounts of fines and
Article 8
periodic penalty payments imposed and their status.
Collection of fines and periodic penalty payments
Article 9
The amounts of fines and periodic penalty payments collected
Calculation of periods, dates and time limits
by ESMA shall be lodged to an interest bearing account opened
by the accounting officer of ESMA until such time as they
Regulation (EEC, Euratom) No 1182/71 shall apply to periods
become final. In the meantime such amounts shall not be
of time, dates and time limits.
entered in ESMA’s budget or recorded as budgetary amounts.
Article 10
Once ESMA’s Accounting Officer has established that the fines
This Regulation shall enter into force on the third day following
and/or periodic penalty payments have become final following
that of its publication in the Official Journal of the European
the outcome of all possible legal challenges he shall transfer
Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 July 2012.
For the Commission
The President
José Manuel BARROSO

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Document Outline

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