THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, and in particular Article 79(9) thereof,
Whereas:
(1)
In order to allow the competent authorities of home and host Member States to efficiently carry out their duties under Directive 2014/65/EU in relation to the operations of a trading venue that have become of substantial importance in the host Member State, it is important to facilitate the cooperation between those authorities through the provision of standard forms, templates and procedures for establishing proportionate cooperation arrangements.
(2)
Competent authorities should use standard forms, templates and procedures as a basis for their cooperation arrangements, but should be able to adapt them in the form of bilateral or multilateral agreements to the individual circumstances of each case in order to set out appropriate supervisory cooperation.
(3)
The competent authorities of home and host Member States should follow standardised procedures for sending and processing requests for cooperation, for continuous information sharing, for consultation and for providing assistance, without prejudice to any further type of cooperation that those competent authorities may agree upon, including the coordination of decision-making.
(4)
Most cooperation arrangements should take place according to modalities governed by Commission Delegated Regulation (EU) 2017/589. Standard forms, templates and procedures that permit adapting those arrangements should be laid down to achieve a higher degree of involvement of the competent authority of the host Member State where there is a higher impact on the securities markets and the investor protection in its jurisdiction.
(5)
The cooperation arrangements should build on best practices, including the principles set out in the guidelines on cooperation arrangements and information exchange between competent authorities and between competent authorities and the European Securities and Markets Authority (ESMA) and the related multilateral memorandum of understanding on Cooperation Arrangements and Exchange of Information to ensure that all areas relevant to efficient cooperation between competent authorities are encompassed and to draw from the expertise established by competent authorities and ESMA in ascertaining seamless cross-border cooperation.
(6)
As the degree of supervisory cooperation is dependent on the nature and scale of changes and developments in the operations or structure of the relevant trading venues, it is appropriate to provide for a minimum number of events for which the use of standardised forms, templates and procedures between home and host competent authorities should be the starting point to engage in proportionate cooperation arrangements.
(7)
Competent authorities should, when requesting assistance in the form of the taking of a statement, the opening of an investigation or carrying out of an on-site inspection, provide a clear explanation on why such assistance is needed to discharge a competent authority's duty.
(8)
In order to allow for the involvement of all relevant competent authorities, additional competent authorities should have the possibility to request becoming a party to an existing cooperation agreement in case the trading venue in respect of which that cooperation agreement has been concluded, due to subsequent commercial developments, becomes of substantial importance in additional host Member States.
(9)
Where, in exceptional circumstances, urgent action is required in order to fulfil obligations under Directive 2014/65/EU or Regulation (EU) No 600/2014 of the European Parliament and of the Council, or to ensure the stability of markets in its Member State, standard agreements for cooperation arrangements should allow for a competent authority to reasonably delay fulfilling its obligations under such agreements.
(10)
For reasons of consistency and in order to ensure the smooth functioning of the financial markets, it is necessary that the provisions laid down in this Regulation and the related national provisions transposing Directive 2014/65/EU apply from the same date.
(11)
This Regulation is based on the draft implementing technical standards submitted by the ESMA to the Commission.
(12)
ESMA has requested the opinion of the Securities and Markets Stakeholder Group established by Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council on the draft implementing technical standards on which this Regulation is based,
HAS ADOPTED THIS REGULATION: