ITS on competent authority information exchange

Urgent requests for cooperation or exchange of information should be allowed where a prompt response is required by the requesting authority in order to stop significant harm or to prevent potential significant harm to investors or to the stability of and trust in the financial system. This includes cases where, for instance, the competent authoritymeans one or more authorities:designated by each Member State in accordance with Article 93 concerning offerors, persons seeking admission to trading of crypto-assets other than asset-referenced tokens and e-money tokens, issuers of asset-referenced tokens, or crypto-asset service providers;designated by each Member State for the application of Directive 2009/110/EC concerning issuers of e-money tokens; of a host Member Statemeans the Member State where an offeror or person seeking admission to trading has made an offer to the public of crypto-assets or is seeking admission to trading, or where a crypto-asset service provider provides crypto-asset services, where different from the home Member State; recently obtained evidence showing that a crypto-asset service providermeans a legal person or other undertaking whose occupation or business is the provision of one or more crypto-asset services to clients on a professional basis, and that is allowed to provide crypto-asset services in accordance with Article 59; authorised in another Member State is marketing crypto-assetsmeans a digital representation of a value or of a right that is able to be transferred and stored electronically using distributed ledger technology or similar technology; which are not compatible with the provisions on protection of clientsmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services; or retail holdersmeans any natural person who is acting for purposes which are outside that person’s trade, business, craft or profession; set out in Article 102 of Regulation (EU) 2023/1114. Urgent requests should also be allowed where a competent authoritymeans one or more authorities:designated by each Member State in accordance with Article 93 concerning offerors, persons seeking admission to trading of crypto-assets other than asset-referenced tokens and e-money tokens, issuers of asset-referenced tokens, or crypto-asset service providers;designated by each Member State for the application of Directive 2009/110/EC concerning issuers of e-money tokens; of a host Member Statemeans the Member State where an offeror or person seeking admission to trading has made an offer to the public of crypto-assets or is seeking admission to trading, or where a crypto-asset service provider provides crypto-asset services, where different from the home Member State; has received relevant complaints relating to a crypto-asset service providermeans a legal person or other undertaking whose occupation or business is the provision of one or more crypto-asset services to clients on a professional basis, and that is allowed to provide crypto-asset services in accordance with Article 59; authorised in another Member State or where a competent authoritymeans one or more authorities:designated by each Member State in accordance with Article 93 concerning offerors, persons seeking admission to trading of crypto-assets other than asset-referenced tokens and e-money tokens, issuers of asset-referenced tokens, or crypto-asset service providers;designated by each Member State for the application of Directive 2009/110/EC concerning issuers of e-money tokens; has reasons to believe that a crypto-asset service providermeans a legal person or other undertaking whose occupation or business is the provision of one or more crypto-asset services to clients on a professional basis, and that is allowed to provide crypto-asset services in accordance with Article 59; operating in its jurisdiction is at risk of insolvency, which may affect clientsmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services; in its jurisdiction or the stability of financial markets.

Regulation (EU) 2023/1114 establishes that competent authoritiesmeans one or more authorities:designated by each Member State in accordance with Article 93 concerning offerors, persons seeking admission to trading of crypto-assets other than asset-referenced tokens and e-money tokens, issuers of asset-referenced tokens, or crypto-asset service providers;designated by each Member State for the application of Directive 2009/110/EC concerning issuers of e-money tokens; are to cooperate with each other, exchange information and render assistance to each other.

Unsolicited transmissions of information should be provided for in accordance with Regulation (EU) 2023/1114, including on a voluntary basis when the competent authoritymeans one or more authorities:designated by each Member State in accordance with Article 93 concerning offerors, persons seeking admission to trading of crypto-assets other than asset-referenced tokens and e-money tokens, issuers of asset-referenced tokens, or crypto-asset service providers;designated by each Member State for the application of Directive 2009/110/EC concerning issuers of e-money tokens; of a Member State considers that information in its possession may be of use to another competent authoritymeans one or more authorities:designated by each Member State in accordance with Article 93 concerning offerors, persons seeking admission to trading of crypto-assets other than asset-referenced tokens and e-money tokens, issuers of asset-referenced tokens, or crypto-asset service providers;designated by each Member State for the application of Directive 2009/110/EC concerning issuers of e-money tokens;. When transmitting unsolicited information, the competent authoritymeans one or more authorities:designated by each Member State in accordance with Article 93 concerning offerors, persons seeking admission to trading of crypto-assets other than asset-referenced tokens and e-money tokens, issuers of asset-referenced tokens, or crypto-asset service providers;designated by each Member State for the application of Directive 2009/110/EC concerning issuers of e-money tokens; should ensure that is has a legal basis to do so, and indicate it in the form set out in the relevant Annex.

A request for assistance pursuant to Article 95 of Regulation (EU) 2023/1114 should provide sufficient information about the subject matter of the request, including the reason for the request and its context, to enable the requested authority to process the request efficiently and expediently. It should not be necessary for a requesting authority to indicate the facts giving rise to the suspicion of infringement that prompted the request where the requested information is necessary for that authority to fulfil its duties.

The procedures for cooperation should allow and facilitate the communication, consultation and interaction between the requesting authority and the requested authority, to ensure an efficient processing of requests for information or assistance. These procedures should also allow competent authoritiesmeans one or more authorities:designated by each Member State in accordance with Article 93 concerning offerors, persons seeking admission to trading of crypto-assets other than asset-referenced tokens and e-money tokens, issuers of asset-referenced tokens, or crypto-asset service providers;designated by each Member State for the application of Directive 2009/110/EC concerning issuers of e-money tokens; to provide each other with feedback on the usefulness of the information or assistance received, on the outcome of the case in relation to which the assistance was sought, and on any problems encountered in providing such information or assistance.

The procedures and forms for the exchange of information and assistance should ensure the confidentiality of the information exchanged or transmitted and compliance with the rules on the protection of the rights of individuals with regard to the processing of personal datameans personal data as defined in Article 4, point (1), of Regulation (EU) 2016/679; and on the free movement of such data.

This Regulation is based on the draft implementing technical standards developed by the European Securities and Markets Authority (ESMA) in close cooperation with European Banking Authority (EBA) and submitted to the Commission.

ESMA has requested the advice of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council(²)Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84, ELI: http://data.europa.eu/eli/reg/2010/1095/oj)..

ESMA has not conducted open public consultations on the draft implementing technical standards on which this Regulation is based, nor has it analysed the potential related costs and benefits of introducing such standards, as to have done so would have been highly disproportionate in relation to the scope and impact of those standards, taking into account that this Regulation would only affect competent authoritiesmeans one or more authorities:designated by each Member State in accordance with Article 93 concerning offerors, persons seeking admission to trading of crypto-assets other than asset-referenced tokens and e-money tokens, issuers of asset-referenced tokens, or crypto-asset service providers;designated by each Member State for the application of Directive 2009/110/EC concerning issuers of e-money tokens; and entities and would not affect market participants,