CHAPTER 4 ESMA AND COMPETENT AUTHORITIES

Without prejudice to the competences of the judicial authorities, each Member State shall designate a single administrative competent authority for the purpose of this Regulation. Member States shall inform the Commission, ESMA and the other competent authorities of other Member States accordingly. The competent authority shall ensure that the provisions of this Regulation are applied on its territory, regarding all actions carried out on its territory, and actions carried out abroad relating to instruments admitted to trading on a regulated market, for which a request for admission to trading on such market has been made, auctioned on an auction platform or which are traded on an MTF or an OTF or for which a request for admission to trading has been made on an MTF operating within its territory.

1.Competent authorities shall exercise their functions and powers in any of the following ways:

(a)directly;

(b)in collaboration with other authorities or with the market undertakings;

(c)under their responsibility by delegation to such authorities or to market undertakings;

(d)by application to the competent judicial authorities.

2.In order to fulfil their duties under this Regulation, competent authorities shall have, in accordance with national law, at least the following supervisory and investigatory powers:

(a)to access any document and data in any form, and to receive or take a copy thereof;

(b)to require or demand information from any person, including those who are successively involved in the transmission of orders or conduct of the operations concerned, as well as their principals, and if necessary, to summon and question any such person with a view to obtain information;

(c)in relation to commodity derivatives, to request information from market participants on related spot markets according to standardised formats, obtain reports on transactions, and have direct access to traders’ systems;

(d)to carry out on-site inspections and investigations at sites other than at the private residences of natural persons;

(e)subject to the second subparagraph, to enter the premises of natural and legal persons in order to seize documents and data in any form where a reasonable suspicion exists that documents or data relating to the subject matter of the inspection or investigation may be relevant to prove a case of insider dealing or market manipulation infringing this Regulation;

(f)to refer matters for criminal investigation;

(g)to require existing recordings of telephone conversations, electronic communications or data traffic records held by investment firms, credit institutions or financial institutions as well as benchmark administrators or supervised contributors;

(h)to require, insofar as permitted by national law, existing data traffic records held by a telecommunications operator, where there is a reasonable suspicion of an infringement and where such records may be relevant to the investigation of an infringement of point (a) or (b) of Article 14 or Article 15;

(i)to request the freezing or sequestration of assets, or both;

(j)to suspend trading of the financial instrument concerned;

(k)to require the temporary cessation of any practice that the competent authority considers contrary to this Regulation;

(l)to impose a temporary prohibition on the exercise of professional activity; and

(m)to take all necessary measures to ensure that the public is correctly informed, inter alia, by correcting false or misleading disclosed information, including by requiring an issuer or other person who has published or disseminated false or misleading information to publish a corrective statement.

Where in accordance with national law prior authorisation to enter premises of natural and legal persons referred to in point (e) of the first subparagraph is needed from the judicial authority of the Member State concerned, the power as referred to in that point shall be used only after having obtained such prior authorisation.

3.Member States shall ensure that appropriate measures are in place so that competent authorities have all the supervisory and investigatory powers that are necessary to fulfil their duties.

This Regulation is without prejudice to laws, regulations and administrative provisions adopted in relation to takeover bids, merger transactions and other transactions affecting the ownership or control of companies regulated by the supervisory authorities appointed by Member States pursuant to Article 4 of Directive 2004/25/EC that impose requirements in addition to the requirements of this Regulation.

4.A person making information available to the competent authority in accordance with this Regulation shall not be considered to be infringing any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and shall not involve the person notifying in liability of any kind related to such notification.

1.The competent authorities shall cooperate with ESMA for the purposes of this Regulation, in accordance with Regulation (EU) No 1095/2010.

2.The competent authorities shall, without delay, provide ESMA with all information necessary to carry out its duties, in accordance with Article 35 of Regulation (EU) No 1095/2010.

3.In order to ensure uniform conditions of application of this Article, ESMA shall develop draft implementing technical standards to determine the procedures and forms for exchange of information as referred to in paragraph 2.

ESMA shall submit those draft implementing technical standards to the Commission by 3 July 2016.

Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.

1.Competent authorities shall cooperate with each other and with ESMA where necessary for the purposes of this Regulation, unless one of the exceptions in paragraph 2 applies. Competent authorities shall render assistance to competent authorities of other Member States and ESMA. In particular, they shall exchange information without undue delay and cooperate in investigation, supervision and enforcement activities.

The obligation to cooperate and assist laid down in the first subparagraph shall also apply as regards the Commission in relation to the exchange of information relating to commodities which are agricultural products listed in Annex I to the TFEU.

The competent authorities and ESMA shall cooperate in accordance with Regulation (EU) No 1095/2010, in particular Article 35 thereof.

Where Member States have chosen, in accordance with Article 30(1), second subparagraph, to lay down criminal sanctions for infringements of the provisions of this Regulation referred to in that Article, they shall ensure that appropriate measures are in place so that competent authorities have all the necessary powers to liaise with judicial authorities within their jurisdiction to receive specific information related to criminal investigations or proceedings commenced for possible infringements of this Regulation and provide the same to other competent authorities and ESMA to fulfil their obligation to cooperate with each other and ESMA for the purposes of this Regulation.

1a. ESMA shall, at the request of at least one competent authority, facilitate and coordinate the cooperation and exchange of information between competent authorities and regulatory authorities in other Member States and third countries. When justified by the character of the case, and at the request of the competent authority, ESMA shall contribute to the investigation of the case by the competent authority.

2.A competent authority may refuse to act on a request for information or a request to cooperate with an investigation only in the following exceptional circumstances, namely where:

(a)communication of relevant information could adversely affect the security of the Member State addressed, in particular the fight against terrorism and other serious crimes;

(b)complying with the request is likely adversely to affect its own investigation, enforcement activities or, where applicable, a criminal investigation;

(c)judicial proceedings have already been initiated in respect of the same actions and against the same persons before the authorities of the Member State addressed; or

(d)a final judgment has already been delivered in relation to such persons for the same actions in the Member State addressed.

3.Competent authorities and ESMA shall cooperate with the Agency for the Cooperation of Energy Regulators (ACER), established under Regulation (EC) No 713/2009 of the European Parliament and of the Council (

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), and the national regulatory authorities of the Member States to ensure that a coordinated approach is taken to the enforcement of the relevant rules where transactions, orders to trade or other actions or behaviours relate to one or more financial instruments to which this Regulation applies and also to one or more wholesale energy products to which Article 3, 4 and 5 of Regulation (EU) No 1227/2011 apply. Competent authorities shall consider the specific characteristics of the definitions of Article 2 of Regulation (EU) No 1227/2011 and the provisions of Article 3, 4 and 5 of Regulation (EU) No 1227/2011 when they apply Articles 7, 8 and 12 of this Regulation to financial instruments related to wholesale energy products.

4.Competent authorities shall, on request, immediately supply any information required for the purpose referred to in paragraph 1.

5.Where a competent authority is convinced that acts contrary to the provisions of this Regulation are being, or have been, carried out on the territory of another Member State or that acts are affecting financial instruments traded on a trading venue situated in another Member State, it shall give notice of that fact in as specific a manner as possible to the competent authority of the other Member State and to ESMA and, in relation to wholesale energy products, to ACER. The competent authorities of the various Member States involved shall consult each other and ESMA and, in relation to wholesale energy products, ACER, on the appropriate action to take and inform each other of significant interim developments. They shall coordinate their action, in order to avoid possible duplication and overlap when applying administrative sanctions and other administrative measures to those cross-border cases in accordance with Articles 30 and 31, and shall assist each other in the enforcement of their decisions.

6.The competent authority of one Member State may request assistance from the competent authority of another Member State with regard to on-site inspections or investigations.

A requesting competent authority may inform ESMA of any request referred to in the first subparagraph. In the case of an investigation or an inspection with cross-border effect, ESMA shall, if requested to do so by one of the competent authorities, coordinate the investigation or inspection.

Where a competent authority receives a request from a competent authority of another Member State to carry out an on-site inspection or an investigation, it may do any of the following:

(a)carry out the on-site inspection or investigation itself;

(b)allow the competent authority which submitted the request to participate in an on-site inspection or investigation;

(c)allow the competent authority which submitted the request to carry out the on-site inspection or investigation itself;

(d)appoint auditors or experts to carry out the on-site inspection or investigation;

(e)share specific tasks related to supervisory activities with the other competent authorities.

Competent authorities may also cooperate with competent authorities of other Member States with respect to facilitating the recovery of pecuniary sanctions.

7.Without prejudice to Article 258 TFEU, a competent authority whose request for information or assistance in accordance with paragraphs 1, 3, 4 and 5 is not acted upon within a reasonable time or whose request for information or assistance is rejected may refer that rejection or absence of action within a reasonable timeframe to ESMA.

In those situations, ESMA may act in accordance with Article 19 of Regulation (EU) No 1095/2010, without prejudice to the possibility of ESMA acting in accordance with Article 17 of Regulation (EU) No 1095/2010.

8.Competent authorities shall cooperate and exchange information with relevant national and third-country regulatory authorities responsible for the related spot markets where they have reasonable grounds to suspect that acts, which constitute insider dealing, unlawful disclosure of information or market manipulation infringing this Regulation, are being, or have been, carried out. Such cooperation shall ensure a consolidated overview of the financial and spot markets, and shall detect and impose sanctions for cross-market and cross-border market abuses.

In relation to emission allowances, the cooperation and exchange of information provided for under the first subparagraph shall also be ensured with:

(a)the auction monitor, with regard to auctions of emission allowances or other auctioned products based thereon that are held pursuant to Regulation (EU) No 1031/2010; and

(b)competent authorities, registry administrators, including the Central Administrator, and other public bodies charged with the supervision of compliance under Directive 2003/87/EC.

ESMA shall perform a facilitation and coordination role in relation to the cooperation and exchange of information between competent authorities and regulatory authorities in other Member States and third countries. Competent authorities shall, where possible, conclude cooperation arrangements with third-country regulatory authorities responsible for the related spot markets in accordance with Article 26.

9.In order to ensure uniform conditions of application of this Article, ESMA shall develop draft implementing technical standards to determine the procedures and forms for exchange of information and assistance as referred to in this Article.

ESMA shall submit those draft implementing technical standards to the Commission by 3 July 2016.

Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.

1.Competent authorities supervising trading venues with a significant cross-border dimension shall, by 5 June 2026, set up a mechanism to permit the ongoing and timely exchange of order data on the financial instruments referred to in paragraph 4, point (a), and collected from those trading venues in accordance with Article 25 of Regulation (EU) No 600/2014. Competent authorities may delegate the set-up of the mechanism to ESMA.

Where a competent authority submits a request for data under paragraph 4, the requested competent authority shall request that data from the relevant trading venue in a timely manner and not later than four working days from the date of the request. The requested data shall be made available to the competent authority that submitted the first request as soon as possible and no later than the deadline determined in paragraph 6, point (c).

The ongoing and timely exchange of order data on the financial instruments referred to in paragraph 4, points (b) and (c), shall be made operational through the mechanism set up pursuant to the first subparagraph of this paragraph by 5 June 2028.

2.The relevant trading venue shall establish and maintain appropriate arrangements, systems and procedures to permit the ongoing and timely exchange of order data by 5 June 2026.

3.The request for ongoing order data from a competent authority may be submitted for a specific set of financial instruments.

4.A competent authority may obtain order data originating from a trading venue that has a significant cross-border dimension when that competent authority is the competent authority of the most relevant market referred to in Article 26 of Regulation (EU) No 600/2014 and that data could be relevant for the supervisory activities of that authority for the following financial instruments:

(a)shares;

(b)bonds;

(c)futures.

5.A Member State may decide that its competent authority participates in the mechanism set up pursuant to paragraph 1 even if none of the trading venues under the supervision of such competent authority has a significant cross-border dimension. Such decision shall be communicated to ESMA which shall make it public on its website.

Where a Member State makes a decision pursuant to the first subparagraph, that Member State and its competent authority shall comply with this Article.

6.ESMA shall develop draft implementing technical standards:

(a)to specify the appropriate mechanism for the exchange of order data and in particular, to lay down the operational arrangements to ensure the swift transmission of information between competent authorities;

(b)to determine appropriate arrangements, systems and procedures for trading venues to comply with paragraph 1, second subparagraph; and

(c)to determine the format and the deadline for providing without delay the requested data in paragraph 1, second subparagraph.

ESMA shall submit those draft implementing technical standards to the Commission by 5 September 2025.

Power is delegated to the Commission to supplement this Regulation by adopting the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.

7.The Commission shall adopt delegated acts in accordance with Article 35 to establish a list of designated trading venues that have a significant cross-border dimension in the supervision of market abuse by taking into account, for each class of financial instruments, at least the following:

(a)the trading volume on the trading venue; and

(b)the trading volume on that trading venue in financial instruments for which the competent authority of the most relevant market referred to in Article 26 of Regulation (EU) No 600/2014 differs from the competent authority of the trading venue.

With regard to shares, the criterion referred to in the first subparagraph, point (a), shall be measured as turnover in shares aggregated at the level of the trading venue, and shall not be below EUR 100 billion per year in any of the last four years. The criterion referred to in the first subparagraph, point (b), shall be defined as the ratio between the turnover in shares for which the competent authority of the most relevant market referred to in Article 26 of Regulation (EU) No 600/2014 is different from the competent authority of the trading venue and the total turnover in all shares traded on that venue in a year. That ratio shall not be below 50 %.

8.By 5 December 2027, ESMA shall submit a report to the Commission on the functioning of the mechanism set up pursuant to paragraph 1.

That report shall cover at least the following:

(a)a description of technical challenges faced by trading venues, competent authorities and ESMA during the implementation of the mechanism for shares;

(b)the costs incurred by competent authorities and ESMA in the set-up of the mechanism for shares;

(c)the functioning of the thresholds referred to in paragraph 7, second subparagraph.

The report shall include a cost-benefit analysis linked to the future development of the mechanism set up pursuant to paragraph 1 with regard to the inclusion in its scope of possible relevant financial instruments, including bonds and futures. The report shall also include recommendations on the extension of the scope to the financial instruments referred to in paragraph 4, taking into account the added value, technical challenges and expected costs.

9.The Commission shall adopt delegated acts in accordance with Article 35 to amend paragraphs 4 and 7 of this Article by updating the financial instruments and the list of designated trading venues with a significant cross-border dimension, and amending paragraph 1, third subparagraph, to postpone the extension of the scope of the mechanism set up pursuant to paragraph 1 to bonds and futures, taking into account the report mentioned in paragraph 8 of this Article, the developments in financial markets and the capacity of competent authorities to process the data on those financial instruments.

1.ESMA may, at the request of one or more competent authorities, in the case of serious concerns about market integrity or the orderly functioning of markets, set up and coordinate a collaboration platform.

2.Without prejudice to Article 35 of Regulation (EU) No 1095/2010, at the request of ESMA, the relevant competent authorities shall provide all necessary information in a timely manner.

3.Where two or more competent authorities of a collaboration platform disagree about the procedure or content of an action to be taken, or inaction, ESMA may, at the request of any relevant competent authority, assist the competent authorities in reaching an agreement in accordance with Article 19(1), first subparagraph, of Regulation (EU) No 1095/2010.

ESMA may also, at the request of one or more competent authorities, coordinate on-site inspections. The competent authority of the home Member State as well as other relevant competent authorities of the collaboration platform may invite ESMA to participate in such on-site inspections.

ESMA may also, at the request of one or more competent authorities, set up a collaboration platform jointly with the Agency for the Cooperation of Energy Regulators (ACER) and the public bodies monitoring wholesale commodity markets where the concerns about market integrity and the orderly functioning of markets affect both financial and spot markets.

1.The competent authorities of Member States shall, where necessary, conclude cooperation arrangements with supervisory authorities of third countries concerning the exchange of information with supervisory authorities in third countries and the enforcement of obligations arising under this Regulation in third countries. Those cooperation arrangements shall ensure at least an efficient exchange of information that allows the competent authorities to carry out their duties under this Regulation.

A competent authority shall inform ESMA and the other competent authorities where it proposes to enter into such an arrangement.

2.ESMA shall, where possible, facilitate and coordinate the development of cooperation arrangements between the competent authorities and the relevant supervisory authorities of third countries.

In order to ensure consistent harmonisation of this Article, ESMA shall develop draft regulatory technical standards containing a template document for cooperation arrangements that are to be used by competent authorities of Member States where possible.

ESMA shall submit those draft regulatory technical standards to the Commission by 3 July 2015.

Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

ESMA shall also, where possible, facilitate and coordinate the exchange between competent authorities of information obtained from supervisory authorities of third countries that may be relevant to the taking of measures under Articles 30 and 31.

3.The competent authorities shall conclude cooperation arrangements on exchange of information with the supervisory authorities of third countries only where the information disclosed is subject to guarantees of professional secrecy which are at least equivalent to those set out in Article 27. Such exchange of information must be intended for the performance of the tasks of those competent authorities.

1.Any confidential information received, exchanged or transmitted pursuant to this Regulation shall be subject to the conditions of professional secrecy laid down in paragraphs 2 and 3.

2.All the information exchanged between the competent authorities under this Regulation that concerns business or operational conditions and other economic or personal affairs shall be considered to be confidential and shall be subject to the requirements of professional secrecy, except where the competent authority states at the time of communication that such information may be disclosed or such disclosure is necessary for legal proceedings.

3.The obligation of professional secrecy applies to all persons who work or who have worked for the competent authority or for any authority or market undertaking to whom the competent authority has delegated its powers, including auditors and experts contracted by the competent authority. Information covered by professional secrecy may not be disclosed to any other person or authority except by virtue of provisions laid down by Union or national law.

1.Competent authorities of a Member State may transfer personal data to a third country provided that the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council (

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) are fulfilled and only on a case-by-case basis. Competent authorities shall ensure that such a transfer is necessary for the purpose of this Regulation and that the third country does not transfer the data to another third country unless it is given express written authorisation to do so and complies with the conditions specified by the competent authority of the Member State concerned.

2.Competent authorities of a Member State shall only disclose personal data received from a competent authority of another Member State to a supervisory authority of a third country where the competent authority of the Member State concerned has obtained express agreement from the competent authority which transmitted the data and, where applicable, provided that the data are disclosed solely for the purposes for which that competent authority gave its agreement.