Art. 9 Procedure for requests concerning an investigation or an on-site inspection | ITS on competent authority information exchange | MiCA

This article governs how competent authorities should handle requests for investigations and on-site inspections under Article 95(4) of Regulation (EU) 2023/1114.

Building on the general cooperation framework established earlier in this regulation, it specifically addresses the mechanics of joint investigative action — setting out how authorities should consult one another, assess the suitability of joint versus individual action, and, where a joint approach is chosen, how they must conduct and conclude that work together.

The article provides a detailed framework of factors to weigh when deciding on a joint investigation, and equally detailed obligations that kick in once that decision is made.

Important points:

Competent authorities (both requesting and requested) are required to consult each other on the best approach to fulfilling an investigation or on-site inspection request, including whether to pursue joint action.
When assessing whether to conduct a joint investigation or on-site inspection, competent authorities must consider factors including cross-border implications, jurisdictional legal constraints, the ne bis in idem principle, resource allocation, and the possibility of a joint action plan.
Where a joint investigation or on-site inspection is agreed upon, competent authorities are required to cooperate closely, maintain ongoing dialogue, coordinate enforcement proceedings, and identify the specific legal provisions governing the subject matter.

1. Where a request to carry out an investigation or an on-site inspection is made pursuant to Article 95(4) of Regulation (EU) 2023/1114, the requesting authority and the requested authority shall consult each other on the best way to give useful effect to the request, taking into account Article 95(4), second subparagraph, points (a) to (d), of Regulation (EU) 2023/1114, including on the merits of conducting a joint investigation or a joint on-site inspection.
1. The requested authority shall keep the requesting authority informed of the progress of the investigation or on-site inspection and shall transmit its findings promptly to the requesting authority.
1. In deciding whether to initiate a joint investigation or a joint on-site inspection, the requesting authority and the requested authority shall take into account at least the following:
  1. the content of any requests for assistance received from the requesting authority including any suggestion on the appropriateness of carrying out a joint investigation or a joint on-site inspection;
  2. whether the competent authorities are separately conducting their own inquiries into a matter with cross-border implications and whether that matter would be more suitable for joint action;
  3. the legal and regulatory framework in each of their jurisdictions as well as the potential constraints and legal limitations on the conduct of any joint investigation or joint on-site inspection and on any proceedings that may follow, including any issues relating to the principle of ne bis in idem;
  4. the management and direction needed for the investigation or on-site inspection;
  5. the allocation of resources and appointment of staff in charge of carrying out investigations or on-site inspections;
  6. the possibility of establishing a joint action plan and a time schedule for the work to be undertaken by each competent authority;
  7. the determination of actions to be taken, jointly or individually, by each competent authority;
  8. the mutual sharing of information gathered and reporting on the outcomes of any individual actions taken;
  9. other case specific issues.
1. Where the requesting authority and the requested authority decide to carry out a joint investigation or a joint on-site inspection, they shall:
  1. agree on procedures for its conduct and conclusion;
  2. engage in an ongoing dialogue to coordinate the information gathering and joint fact finding;
  3. work closely and cooperate with each other on the conduct of the joint investigation or the joint on-site inspection;
  4. provide mutual assistance on subsequent enforcement proceedings to the extent legally permitted, including coordinating any proceedings or other enforcement action related to the outcome of the joint investigation or the joint on-site inspection, whether administrative, civil or criminal, or, where appropriate, the prospects of a settlement;
  5. identify the specific legal provisions governing the subject matter of the joint investigation or of the joint on-site inspection.