Preamble Recitals

Article 96(1) of Regulation (EU) 2023/1114 requires the competent authorities to cooperate closely with the European Securities and Markets Authority (ESMA), established by 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)., and with the European Banking Authority (EBA), established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council(³)Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 331, 15.12.2010, p. 12, ELI: http://data.europa.eu/eli/reg/2010/1093/oj)..

Article 96(2) of Regulation (EU) 2023/1114 requires competent authorities to provide ESMA and EBA with all necessary information to carry out their duties, in accordance with Article 35 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council and with Article 35 of Regulation (EU) No 1093/2010 respectively.

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 submitting party.

Information that is not the subject of a specific request should be transmitted in accordance with Regulation (EU) 2023/1114, including on a voluntary basis, when the submitting body considers that information in its possession may be of use to another body. When transmitting unsolicited information, the submitting body should indicate the provision of Regulation (EU) 2023/1114 under which it transmits that information in the form set out in the relevant Annex.

A request should contain sufficient information about the subject matter of the cooperation or exchange of information and include the reasons for the request and its context, to enable the receiving body to easily and efficiently process the request. It should not be necessary for a submitting body to indicate the facts giving rise to the suspicion of infringement of Regulation EU) 2023/1114 that prompted the request where the requested information is necessary for that body to fulfil its duties.

The procedure as well as the forms and templates used for the exchange of information and the provision of cooperation should ensure that any information exchanged or transmitted is kept confidential, and that rules with regard to the processing of personal data and the free movement of personal data are complied with.

This Regulation is based on the draft implementing technical standards developed by ESMA in close cooperation with 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,

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 those authorities and entities and would not affect market participants,