Title III – Information exchange and cooperation between the competent authorities using the ESAs Information System

Where the ESAs Information System search indicates that relevant information for the purpose of an assessment is available, the competent authority should, before making the assessment, submit a request for information through the ESAs Information System to the competent authorities identified in line with paragraph 11 that hold relevant information on the person of interest.

The requesting authority should set out the reason for the request, the information requested and the Union sectoral provisions on the basis of which the assessment is being made.

14.The requesting authority should provide the requested authority with any document or supporting material deemed necessary to support the request using bilateral means of communication outside of the ESAs Information System. Competent authorities may facilitate the exchange of information by way of cooperation arrangements¹ .

Processing and responding to requests for information

¹ E.g. ESMA Multilateral Memorandum of Understanding on Cooperation Arrangements and Exchange of Information

The actual exchange of underlying information that is relevant for the assessment of the fitness and propriety of a person of interest will be made bilaterally, between the requesting and requested authorities outside the ESAs Information System.

The requested authority should, in accordance with the principle of sincere cooperation set out in Article 4(3) of the Treaty on European Union (TEU) and reflected in Articles 2(4) of the Founding Regulations, and taking into account Union sectoral provisions and any other applicable legal acts related to sectoral provisions, respond to the request within two weeks from receipt of the request and provide the information or explain why the information can only be provided at a later date and specify that date. In the case of a negative assessment or a withdrawal of the application for an assessment, available information about the reasons for the negative assessment or the withdrawal should also be provided.

The requested authority should not provide the information requested where confidentiality or personal data protection requirements set out in Union sectoral provisions or in any other applicable legal provisions prevent it from doing so or where the requested authority cannot, for objective reasons, provide the information requested.

Where the exchange of information is impossible in accordance with paragraph 17, the requested authority should, as soon as possible but at the latest within two weeks from receipt of the request, inform the requesting authority and explain the reasons for this. If it is partially impossible to provide all the requested information, the requested authority should provide the requesting authority with the part of the information whose provision is permitted and explain the reasons for withholding other parts of the information.

The requested authority may ask for clarifications from the requesting authority regarding the request received. The requesting authority should respond to any such clarification requests without undue delay. If clarifications are sought, the time period under paragraphs 16 and 18 should start after the clarifications are provided by the requesting authority.

Confidentiality

Competent authorities should treat all information received in accordance with these Guidelines as confidential and treat it in line with professional secrecy and personal data protection requirements set out in Union legislation and applicable national law.