Article 40 Hearing of persons subject to investigations

1.   Before taking any decision imposing a supervisory measure, fine or periodic penalty payment pursuant to Article 35, 36 or 37, ESMA shall give the persons subject to the investigations the opportunity to be heard on its findings. ESMA shall base its decisions only on findings on which the persons subject to the investigations have had an opportunity to comment.

The first subparagraph shall not apply where urgent action pursuant to Article 35 is needed 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 defence of the persons subject to the investigations shall be fully respected during the investigations. 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.