Commission Implementing Regulation (EU) 2018/292 of 26 February 2018 laying down implementing technical standards with regard to procedures and forms for exchange of information and assistance between competent authorities according to Regulation (EU) No 596/2014 of the European Parliament and of the Council on market abuse (Text with EEA relevance. )
Commission Implementing Regulation (EU) 2018/292of 26 February 2018laying down implementing technical standards with regard to procedures and forms for exchange of information and assistance between competent authorities according to Regulation (EU) No 596/2014 of the European Parliament and of the Council on market abuse(Text with EEA relevance)THE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/ECOJ L 173, 12.6.2014, p. 1., and in particular Article 25(9) thereof,Whereas:(1)In order to ensure that authorities designated as competent authorities under Regulation (EU) No 596/2014 are able to cooperate and exchange information in an efficient and timely manner and provide each other full mutual assistance for the purposes of that Regulation, it is appropriate to set out common procedures and forms to be used by competent authorities for exchange of information and assistance, including for the submission of requests for assistance, acknowledgments of receipts and replies to such requests.(2)The exchange of written information should assist a competent authority in fulfilling its duties. Oral communication may take place, where appropriate, including before a written request is sent, to provide information about an upcoming request for assistance and to discuss any issues that may impede the assistance being provided. In urgent cases, a request for assistance should also be permitted to be communicated orally, where the urgency is not due to late action by the requesting party.(3)Regulation (EU) No 596/2014 establishes that competent authorities are to exchange information and provide assistance. However, requests for assistance should, to the extent possible, include the taking of a statement or carrying out an on-site inspection or an investigation, only in cases where a simple request for exchange of information would not be sufficient. Prior to filing a request for assistance to a competent authority of another Member State, a competent authority is expected to have undertaken all actions reasonably practicable in its own jurisdiction, noting though it may not be reasonably feasible for this authority to have exhausted all the methods of enquiry prior to the request.(4)Unsolicited assistance should be provided in accordance with Regulation (EU) No 596/2014, including on a voluntary basis when the competent authority of a Member State considers that information in its possession may be of use for another competent authority.(5)A request for assistance pursuant to Regulation (EU) No 596/2014 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. Indicating the facts giving rise to the suspicion should not be considered as a precondition for a requesting authority to receive assistance where the requested information is necessary for the authority to fulfil its duties.(6)Beyond the use of forms for requesting and replying to a request for assistance, the procedures for cooperation should allow and facilitate the communication, consultation and interaction between the requesting authority and the requested authority, throughout the process, to ensure an efficient processing of a request 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.(7)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 individuals with regard to the processing of personal data and on the free movement of such data.(8)This Regulation is based on the draft implementing technical standards submitted by ESMA to the Commission.(9)ESMA did not conduct open public consultations on the draft implementing technical standards on which this Regulation is based, nor did it analyse the potential related costs and benefits of introducing the procedures and forms to be used by the relevant competent authorities, as this would have been disproportionate in relation to the scope and impact of those standards, taking into account that their addressees would only be the national competent authorities of the Member States and not market participants.(10)ESMA has requested the opinion 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 CouncilRegulation (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)..(11)To ensure the smooth functioning of the financial markets and considering that Regulation (EU) No 596/2014 is already in application, it is necessary for this Regulation to enter into force and apply immediately,HAS ADOPTED THIS REGULATION: