+Article 35 Supervisory measures by ESMA
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Article 35 Supervisory measures by ESMA

1. Panoramica

,
Article 35 1

1.   Where ESMA finds that an ESG rating provider has not complied with its obligations under this Regulation, it shall take one or more of the following supervisory measures:

(a)

suspend or withdraw the authorisation or recognition of the ESG rating provider;

(b)

temporarily prohibit the ESG rating provider from publishing or distributing ESG ratings, until the infringement has been brought to an end;

(c)

require the ESG rating provider to bring the infringement to an end;

(d)

impose fines pursuant to Article 36;

(e)

issue public notices.
Article 35 2

2.   ESMA may also take one or more of the supervisory measures referred to in paragraph 1, points (b) to (e), of this Article in respect of any ESG rating provider that operates in the Union pursuant to Article 2(1):

(a)

without complying with Article 4, or where ESMA has suspended or withdrawn the ESG rating provider’s authorisation or recognition referred to in that Article;

(b)

without complying with the conditions to benefit from any exclusion set out in Article 2(2).
Article 35 3

3.   ESMA may also take the supervisory measure referred to in paragraph 1, point (e), in the event that an ESG rating activity of an ESG rating provider operating in the Union poses a serious threat to market integrity or to investor protection in the Union.

In order to verify whether a person is operating in the Union pursuant to Article 2(1), ESMA may use the powers conferred on it by Articles 32, 33 and 34 in respect of the person concerned or any third parties who enable the person concerned to carry out the ESG rating activity.
Article 35 4

4.   The supervisory measures referred to in paragraph 1 shall be effective, proportionate and dissuasive.
Article 35 5

5.   When taking any of the supervisory measures referred to in paragraph 1, ESMA shall take into account the nature and seriousness of the infringement, having regard to the following criteria:

(a)

the duration and frequency of the infringement;

(b)

whether financial crime has been committed or facilitated or is otherwise attributable to the infringement;

(c)

whether the infringement has been committed intentionally or negligently;

(d)

the degree of responsibility of the person responsible for the infringement;

(e)

the financial strength of the ESG rating provider, as indicated by its total annual net turnover;

(f)

the impact of the infringement on the interests of investors and on other users of ESG ratings;

(g)

the importance of the profits gained and losses avoided by the ESG rating provider or the losses for third parties derived from the infringement, insofar as such profits and losses can be determined;

(h)

the level of cooperation of the ESG rating provider with ESMA, without prejudice to the need to ensure the disgorgement of profits gained or losses avoided by that ESG rating provider due to the infringement;

(i)

any previous infringements by the ESG rating provider;

(j)

measures taken after the infringement by the ESG rating provider to prevent its repetition.

For the purposes of the first subparagraph, point (c), an infringement shall be considered to have been committed intentionally if ESMA finds objective elements which demonstrate that a person acted deliberately to commit the infringement.
Article 35 6

6.   ESMA shall notify any decision to take a supervisory measure pursuant to paragraph 1 to the person responsible for the infringement without undue delay. ESMA shall publish any such decision on its website within 10 working days of the date when it was adopted.

The publication referred to in the first subparagraph shall contain all of the following:

(a)

a statement affirming the right of the ESG rating provider to appeal the decision;

(b)

where relevant, a statement affirming that an appeal has been lodged and specifying that such an appeal does not have suspensive effect;

(c)

a statement asserting that it is possible for ESMA to suspend the application of the contested decision in accordance with Article 60(3) of Regulation (EU) No 1095/2010.
Article 35 7

7.   ESMA may also require the infringing ESG rating provider to inform the users of its ESG ratings of any supervisory measure taken by ESMA pursuant to paragraph 1.

1.1 Riferimenti

1.2 Requisiti identificati

1.3 Standard correlati

2. Requisiti identificati

Requisiti

3. Standard correlati

Standard