Art. 2 Procedural rules in infringement proceedings before the EBA with regard to fines and supervisory measures | Fines and penalties of the EBA | MiCA

This article picks up directly where Article 1 leaves off, governing what happens once the investigation officer submits the completed file to the EBA.

It outlines the EBA's role in reviewing that file and the procedural steps it must follow, from assessing whether an infringement has occurred, to engaging with the person under investigation, and ultimately issuing a decision.

The article covers both the scenario where the EBA closes the investigation and the scenario where it agrees with some or all of the findings and moves toward imposing a fine.

Important points:

The EBA has the power to close an investigation if it finds the facts do not constitute an infringement under Annex V or VI of Regulation (EU) 2023/1114, and must notify the person subject to investigation of that decision.
Where the EBA agrees with the investigation officer's findings, the person subject to investigation must be given a minimum of two weeks (full agreement) or four weeks (partial agreement) to submit a written response.
The EBA is required to immediately notify the person subject to investigation once a decision imposing a fine under Article 131 of Regulation (EU) 2023/1114 has been adopted.

1. The complete file to be submitted by the investigation officer to the EBA shall include the following documents:
  1. the statement of findings and a copy thereof addressed to the person subject to investigation as well as any amended statement of findings as a result of the submissions made by the person subject to investigation;
  2. copy of the written submissions by the person subject to investigation;
  3. the minutes of an oral hearing, if applicable.
1. Where a file is incomplete, the EBA shall make a reasoned request for additional documents to the investigation officer.
1. Where the EBA considers that the facts described in the statement of findings of the investigation officer do not constitute an infringement as set out in Annex V or VI to Regulation (EU) 2023/1114, it shall decide to close the investigation and notify that decision to the person subject to investigation.
1. Where the EBA agrees with all or some of the findings of the investigation officer, it shall inform the person subject to investigation accordingly. Such communication shall set a time limit of at least two weeks in case the EBA agrees with all of the findings, and at least four weeks in case the EBA does not agree with all of the findings, within which period the person subject to investigation may make written submissions. The EBA shall not be obliged to take into account written submissions received after the expiry of that time limit for adopting a decision on an infringement and on supervisory measures and the imposition of a fine in accordance with Articles 130 and 131 of Regulation (EU) 2023/1114.
1. The EBA may invite the person subject to investigation to which a statement of findings has been addressed to attend an oral hearing. The person subject to investigation may be assisted by a counsel of their choice. Oral hearings shall not be public.
1. If the EBA decides that one or more of the infringements set out in Annex V or VI to Regulation (EU) 2023/1114 has been committed by a person subject to investigation and has adopted a decision imposing a fine in accordance with Article 131 of that Regulation, it shall immediately notify that decision to the person subject to investigation.