Version in force , Modified +118 −36§
Amended by Regulation (EU) No 462/2013 32013R0462 on EUR-Lex (external, EUR-Lex)
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Points (a), (b), (d), (e) and (h) of Article 36a(2)(1) now list additional Annex III point numbers alongside the ones previously named, expanding the sets of infringements grouped under each fine bracket.
In particular, point (a) adds points 26a to 26d and 55 to 62, point (b) adds points 22a, 42a, 42b and 49a while dropping point 16 to 18 in favour of separately listed 16, 17 and 18, point (d) adds point 9, point (e) adds point 3a while removing point 4, and point (h) adds point 20a of Section I and points 4a to 4c of Section III.
The monetary limits stated for each of these points remain the same figures as before.
Cited: Art. 36a, v2 (external, EUR-Lex) · Art. 36a, v1 (external, EUR-Lex)
v1 is the previous version, v2 this one.
Text from EUR-Lex, before and after
Previous version, in force 21 July 2011 02009R1060-20110721 → this version, in force 20 June 2013 02009R1060-20130620
Article 36a
Fines
1.
Where, in accordance with Article 23e(5), ESMA's Board of Supervisors finds that a credit rating agency has, intentionally or negligently, committed one of the infringements listed in Annex III, it shall adopt a decision imposing a fine in accordance with paragraph 2.
An infringement by a credit rating agency shall be considered to have been committed intentionally if ESMA finds objective factors which demonstrate that the credit rating agency or its senior management acted deliberately to commit the infringement.
2.
The basic amount of the fines referred to in paragraph 1 shall be included within the following limits:
(a) for the infringements referred to in points 1 to 5, 11 to 15, 19, 20, 23, 26a to 26d, 28, 30, 32, 33, 35, 41, 43, 50 50, 51 and 51 55 to 62 of Section I of Annex III, the fines shall amount to at least EUR 500000 and shall not exceed EUR 750000;
(b) for the infringements referred to in points 6 to 6, 7, 8, 16 to 16, 17, 18, 21, 22, 22a, 24, 25, 27, 29, 31, 34, 37 to 40, 42, 42a, 42b, 45 to 47, 48, 49, 52 49a, 52, 53 and 54 of Section I of Annex III, the fines shall amount to at least EUR 300000 and shall not exceed EUR 450000;
(c) for the infringements referred to in points 9, 10, 26, 36, 44 and 53 of Section I of Annex III, the fines shall amount to at least EUR 100000 and shall not exceed EUR 200000;
(d) for the infringements referred to in points 1, 6, 7 7, 8 and 8 9 of Section II of Annex III, the fines shall amount to at least EUR 50000 and shall not exceed EUR 150000;
(e) for the infringements referred to in points 2, 4 and 3a to 5 of Section II of Annex III, the fines shall amount to at least EUR 25000 and shall not exceed EUR 75000;
(f) for the infringements referred to in point 3 of Section II of Annex III, the fines shall amount to at least EUR 10000 and shall not exceed EUR 50000;
(g) for the infringements referred to in points 1 to 3 and 11 of Section III of Annex III, the fines shall amount to at least EUR 150000 and shall not exceed EUR 300000;
(h) for the infringements referred to in point 20a of Section I of Annex III, points 4, 4 to 4c, 6, 8 and 10 of Section III of Annex III, the fines shall amount to at least EUR 90000 and shall not exceed EUR 200000;
(i) for the infringements referred to in points 5, 7 and 9 of Section III of Annex III, the fines shall amount to at least EUR 40000 and shall not exceed EUR 100000.
In order to decide whether the basic amount of the fines should be set at the lower, the middle or the higher end of the limits set out in the first subparagraph, ESMA shall have regard to the annual turnover in the preceding business year of the credit rating agency concerned. The basic amount shall be at the lower end of the limit for credit rating agencies whose annual turnover is below EUR 10 million, the middle of the limit for the credit rating agencies whose annual turnover is between EUR 10 and 50 million and the higher end of the limit for the credit rating agencies whose annual turnover is higher than EUR 50 million.
3.
The basic amounts defined within the limits set out in paragraph 2 shall be adjusted, if need be, by taking into account aggravating or mitigating factors in accordance with the relevant coefficients set out in Annex IV.
The relevant aggravating coefficient shall be applied one by one to the basic amount. If more than one aggravating coefficient is applicable, the difference between the basic amount and the amount resulting from the application of each individual aggravating coefficient shall be added to the basic amount.
The relevant mitigating coefficient shall be applied one by one to the basic amount. If more than one mitigating coefficient is applicable, the difference between the basic amount and the amount resulting from the application of each individual mitigating coefficient shall be subtracted from the basic amount.
4.
Notwithstanding paragraphs 2 and 3, the fine shall not exceed 20 % of the annual turnover of the credit rating agency concerned in the preceding business year and, where the credit rating agency has directly or indirectly benefitted financially from the infringement, the fine shall be at least equal to that financial benefit.
Where an act or omission of a credit rating agency constitutes more than one infringement listed in Annex III, only the higher fine calculated in accordance with paragraphs 2 and 3 and related to one of those infringements shall apply.