Working Methods
Board of Supervisors
Within ESMA, the Board of Supervisors makes all the policy decisions of ESMA and approves all work done by ESMA, which will be mainly at level 2, 3 and 4.
The Board of Supervisors is composed of the heads of 27 national authorities, with observers from Iceland, Lichtenstein and Norway, from the European Commission, a representative of European Banking Authority (EBA) and European Insurance and Occupational Pensions Authority (EIOPA) and one representative of the European Systemic Risk Board (ESRB).
Voting by the Board of Supervisors will be undertaken on a simple majority basis (one vote per national member) for all matters except guidelines and technical standards. In the case of guidelines and standards, voting will be done by qualified majority as set out under the Treaty on the European Union.
Standing Committees and Networks
The day-to-day work in developing proposals for approval by the Board of Supervisors will generally be carried out by the Standing Committees. These are chaired by senior national representatives (usually a Member of the Board of Supervisors) and bring together national experts with support from the staff of the Authority, who act as rapporteurs for the Committees.
When considered necessary, ESMA may review the Standing Committees in place and if necessary re-organise or establish new Committees.
After being formed, the Standing Committee generally establishes a Consultative Working Group of market participants (practitioners, consumers and end-users) to provide technical advice to the expert group during the drafting process. The market participants are experts drawn from across the European Member States. They are not intended to represent national or a specific firms interest and do not replace the important process of full consultation with all market participants and other stakeholders or the specific role of the Securities and Markets Stakeholder Group as set out in the ESMA Regulation.
When a document is ready for public consultation (following approval by the Board of Supervisors) it is published on ESMA's website under the section Consultations and a public hearing is often organised. In addition, ESMA formally consults the Securities and Markets Stakeholder Group and any further competent authorities where necessary.
The purpose of ESMA's Standing Committees and groups is also to strengthen the network of regulators in a given area as agreed in a tailored set of terms of reference. Much of the work is therefore also focused on initiatives carried out at Level 3. These include efforts to strengthen co-operation between national authorities to ensure consistent and effective supervision of financial services activities, and enforcement of securities laws in Europe and additional steps to protect investors. As such, these Standing Committee may, for example, develop standards and guidance or share confidential regulatory information based on legal agreements under the Memorandum of Understanding. Where appropriate, a Standing Committee can invite external parties of other relevant supervisory authorities to participate as an observer.
Instruments
Guidelines
In order to promote supervisory convergence ESMA has the power to issue guidelines (Article 16 ESMA Regulation 1095/2010) which are addressed to competent authorities or, as the case may be, to market participants. In the context of developing the guidelines ESMA will, where appropriate, conduct open public consultation. ESMA is entitled to receive information from competent authorities or, as the case may be, from market participants whether they comply with the guidelines and to publish the reasons of supervisory authorities’ non-compliance.
Technical Standards
According to Articles 10 et seq. ESMA Regulation 1095/2010 ESMA is entitled to elaborate technical standards to be submitted to the Commission for endorsement. Depending on the level 1 mandate ESMA will either develop regulatory technical standards which are endorsed by the Commission by means of delegated acts under Article 290 TFEU or implementing technical standards which are adopted by the Commission by means of implementing acts under Article 291 TFEU. Usually, ESMA will conduct open public consultations before submitting the technical standards to the Commission.
Q&A
ESMA can issue Q&As to competent authorities or financial market participants in order to build a common supervisory culture and consistent supervisory practices, as well as ensure uniform procedures and consistent approaches throughout the Union.
Opinions
ESMA can issue an opinion to competent authorities or financial market participants in order to build a common supervisory culture and consistent supervisory practices, as well as in ensuring uniform procedures and consistent approaches throughout the Union.