Article 39 Procedural rules for taking supervisory measures and imposing fines

1.   Where ESMA finds that there are serious indications of a possible infringement of this Regulation, ESMA shall appoint an independent investigation officer within ESMA to investigate the matter. That investigation officer shall not be directly or indirectly involved or have been directly or indirectly involved in the supervision of the ESG ratings to which the infringement relates and shall perform his or her functions independently from ESMA’s Board of Supervisors.

2.   The investigation officer referred to in paragraph 1 shall investigate the alleged infringements, take into account any comments submitted by the persons who are subject to the investigation, and submit a complete file with his or her findings to ESMA’s Board of Supervisors.

3.   The investigation officer shall have the power to request information in accordance with Article 32 and to conduct investigations and on-site inspections in accordance with Articles 33 and 34.

4.   When carrying out his or her tasks, the investigation officer shall have access to all documents and information that have been gathered by ESMA in its supervisory activities.

5.   The rights of defence of the persons subject to the investigation shall be fully respected during investigations under this Regulation.

6.   Upon submission of the file with his or her findings to ESMA’s Board of Supervisors, the investigation officer shall notify the persons who are subject to the investigation.

7.   On the basis of the file containing the investigation officer’s findings, and where requested by the persons concerned after having heard those persons in accordance with Article 40, ESMA’s Board of Supervisors shall assess whether one or more persons subject to the investigation have committed the infringements concerned and shall, where it comes to the conclusion that such infringements have been committed, take a supervisory measure as referred to in Article 35 and impose a fine in accordance with Article 36.

8.   The investigation officer shall not participate in the deliberations of ESMA’s Board of Supervisors or in any other way intervene in the decision-making process of ESMA’s Board of Supervisors.

9.   The Commission shall adopt delegated acts in accordance with Article 47 to supplement this Regulation by adopting further rules of procedure for the exercise of ESMA’s power to impose fines or periodic penalty payments, including provisions on rights of defence, temporal provisions and the collection of fines or periodic penalty payments, and by adopting detailed rules on the limitation periods for the imposition and enforcement of fines and periodic penalty payments.

10.   ESMA shall refer matters for criminal prosecution to the national authorities concerned where, in carrying out its tasks under this Regulation, it finds that there are serious indications of the possible existence of facts liable to constitute criminal offences. ESMA shall refrain from imposing fines or periodic penalty payments where a prior acquittal or conviction arising from an identical fact or facts which are substantially the same has already acquired the force of res judicata as the result of criminal proceedings under national law.