ESMA_QA_2040
Status: ✅ Answer Published
Link to ESMA Q&A tool: https://www.esma.europa.eu/publications-data/questions-answers/2040
Regulatory Context
Regulation : TRANSPARENCE
Level 1 Regulation: Transparency Directive (TD) Directive 2004/109/EC
Level 2 Regulation: No information available
Level 3 Regulation: No information available
Topic: Transparency
Subject Matter: Publication of sanctions and administrative measures without “undue delay”; TD Art 29
Question
Submission Date: 23 October 2015
As regards the decision making process, shall National Competent Authorities (NCAs) publish decisions on sanctions and measures only after the exhaustion of all relevant legal remedies (or the expiry of the deadline to exercise them)?
ESMA Answer
Answer Date: 23-10-2015
[ESMA31-67-127 TD Q24] No. According to Art 29(1) of the TD, decisions on administrative measures and sanctions as referred to in Art 28b of the TD shall be published by NCAs without undue delay without prejudice to any legal remedy of appeal against such decisions. Given the presumption of lawfulness of administrative acts, final decisions on administrative measures and sanctions shall be published immediately after they have been adopted by the national competent authority, in compliance with the relevant national administrative procedures. Prompt publication of such decisions is an important tool for the competent authorities to inform market participants of what practices are to be considered an infringement of the TD and should not be dependent on the legal remedies against them, which are not harmonized across Member States. The publication of such administrative measures and sanctions adopted by national competent authorities does not have any impact on the right of appeal. Indeed, pursuant to Article 29 (2) of TD, where an appeal is submitted against the adopted decision, national competent authorities are obliged either to include information to that effect in the publication at the time of the publication or to amend the publication if the appeal is submitted after the initial publication.
This document was automatically extracted from the ESMA EMIR Q&A database.