Art. 38l · Hearing of the persons concerned

Version in force 1 January 2022, Inserted +1,034 −0§

Amended by Regulation (EU) 2019/2175 32019R2175 on EUR-Lex (external, EUR-Lex) · Regulation (EU) 2022/858 32022R0858 on EUR-Lex (external, EUR-Lex)

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A new Article 38l is added, setting out procedures for ESMA to hear persons subject to proceedings before taking decisions under Articles 38g, 38h and 38i, including an exception allowing an interim decision where urgent action is needed to prevent significant and imminent damage to the financial system, followed by a hearing opportunity afterward.

The new provision also establishes that the rights of defence of persons under investigation are to be fully respected, granting them access to ESMA's file subject to protection of other persons' business secrets, while excluding confidential information and ESMA's internal preparatory documents from that access.

Cited: Art. 38l, v2 (external, EUR-Lex)

v1 is the previous version, v2 this one.

Article 38l
Hearing of the persons concerned
1. Before taking any decision pursuant to Articles 38g, 38h and 38i, ESMA shall give the persons subject to the proceedings the opportunity to be heard on its findings. ESMA shall base its decisions only on findings on which the persons subject to the proceedings have had an opportunity to comment.
The first subparagraph shall not apply if urgent action is needed in order to prevent significant and imminent damage to the financial system. In such a case ESMA may adopt an interim decision and shall give the persons concerned the opportunity to be heard as soon as possible after taking its decision.
2. The rights of the defence of the persons subject to investigations shall be fully respected in the proceedings. They shall be entitled to have access to ESMA’s file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information or ESMA’s internal preparatory documents.