Preamble Recitals

Markets in crypto-assets are inherently cross-border. It is therefore necessary to ensure that competent authorities in different Member States can cooperate and exchange information that enables them to effectively supervise issuers and offerors of crypto-assets and crypto-asset service providers operating across the Union. Competent authorities should have access to the information necessary to allow the effective discharge of their supervisory, investigative and enforcement duties and functions.

To ensure that competent authorities are able to cooperate and to exchange information in an efficient and timely manner and to provide assistance to each other for the purposes of Regulation (EU) 2023/1114, it is appropriate to set out common procedures, forms and templates for the submission of requests for assistance, acknowledgments of receipts and replies to such requests.

Information should normally be exchanged in writing. However, oral communications should be possible in appropriate cases, including, in particular, before a written request for cooperation or exchange of information is sent, to provide information on an upcoming request for cooperation or exchange of information, or to discuss any issues that might make it difficult to comply with that request. In urgent cases, it should also be possible to orally communicate a request for cooperation or exchange of information, provided that such urgency is not due to a delay on the part of the requesting party.

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 authority of a host Member State recently obtained evidence showing that a crypto-asset service provider authorised in another Member State is marketing crypto-assets which are not compatible with the provisions on protection of clients or retail holders set out in Article 102 of Regulation (EU) 2023/1114. Urgent requests should also be allowed where a competent authority of a host Member State has received relevant complaints relating to a crypto-asset service provider authorised in another Member State or where a competent authority has reasons to believe that a crypto-asset service provider operating in its jurisdiction is at risk of insolvency, which may affect clients in its jurisdiction or the stability of financial markets.

Regulation (EU) 2023/1114 establishes that competent authorities 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 authority of a Member State considers that information in its possession may be of use to another competent authority. When transmitting unsolicited information, the competent authority 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 authorities 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 data 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 authorities and entities and would not affect market participants,