Version in force , Inserted +2,791 −0§
Amended by Regulation (EU) No 462/2013 32013R0462 on EUR-Lex (external, EUR-Lex)
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Explanation, written by a model and checked against the cited text
This article is entirely new text establishing a civil liability regime for credit rating agencies, allowing investors or issuers to claim damages for infringements listed in Annex III that intentionally or with gross negligence had an impact on a credit rating.
It sets out conditions for investors and issuers to establish reliance or coverage, places the burden of presenting accurate and detailed information on the investor or issuer, limits the extent to which civil liability may be restricted in advance, and specifies that undefined terms and unaddressed matters are governed by applicable national law under private international law rules.
The provision also states that it does not exclude further civil liability claims under national law and does not prevent ESMA from exercising its powers under Article 36a.
Cited: Art. 35a, v2 (external, EUR-Lex)
v1 is the previous version, v2 this one.
Text from EUR-Lex
Inserted in this version 02009R1060-20130620
Article 35a Civil liability 1. Where a credit rating agency has committed, intentionally or with gross negligence, any of the infringements listed in Annex III having an impact on a credit rating, an investor or issuer may claim damages from that credit rating agency for damage caused to it due to that infringement. An investor may claim damages under this Article where it establishes that it has reasonably relied, in accordance with Article 5a(1) or otherwise with due care, on a credit rating for a decision to invest into, hold onto or divest from a financial instrument covered by that credit rating. An issuer may claim damages under this Article where it establishes that it or its financial instruments are covered by that credit rating and the infringement was not caused by misleading and inaccurate information provided by the issuer to the credit rating agency, directly or through information publicly available. 2. It shall be the responsibility of the investor or issuer to present accurate and detailed information indicating that the credit rating agency has committed an infringement of this Regulation, and that that infringement had an impact on the credit rating issued. What constitutes accurate and detailed information shall be assessed by the competent national court, taking into consideration that the investor or issuer may not have access to information which is purely within the sphere of the credit rating agency. 3. The civil liability of credit rating agencies, as referred to in paragraph 1, shall only be limited in advance where that limitation is: (a) reasonable and proportionate; and (b) allowed by the applicable national law in accordance with paragraph 4. Any limitation that does not comply with the first subparagraph, or any exclusion of civil liability shall be deprived of any legal effect. 4. Terms such as damage, intention, gross negligence, reasonably relied, due care, impact, reasonable and proportionate which are referred to in this Article but are not defined, shall be interpreted and applied in accordance with the applicable national law as determined by the relevant rules of private international law. Matters concerning the civil liability of a credit rating agency which are not covered by this Regulation shall be governed by the applicable national law as determined by the relevant rules of private international law. The court that is competent to decide on a claim for civil liability brought by an investor or issuer shall be determined by the relevant rules of private international law. 5. This Article does not exclude further civil liability claims in accordance with national law. 6. The right of redress set out in this Article shall not prevent ESMA from fully performing its powers as laid down in Article 36a.