(a) No. Regulation (EC) No 1060/2009 defines an unsolicited credit rating as a credit rating “assigned by a credit rating agency other than upon request”.

Article 10(5) of Regulation (EC) No 1060/2009 requires CRAs to state prominently whether or not the relevant entity has participated in the credit rating process and whether the credit rating agency had access to its accounts.

It follows that participation of the issuer or rated entity in the rating process other than a concrete request (for example, by providing a CRA with information or access to their accounts) does not in itself transform an unsolicited rating into a solicited rating.

(b) No. Article 3(1)(x) of Regulation (EC) No 1060/2009 only defines “unsolicited rating” and “unsolicited sovereign rating” without explicitly defining “solicited ratings” or “solicited sovereign ratings”. However, useful guidance is provided by Recital 21 of Regulation (EC) No 1060/2009 which, inter alia, refers to an unsolicited credit rating as a credit rating not initiated at the request of the issuer or rated entity.

The definition of unsolicited credit rating provided by Article 3(1)(x) has to be systematically interpreted, i.e. read in conjunction with the provisions of Regulation (EC) No 1060/2009 which refer to solicited credit rating only in the context of an existing contractual relationship between the CRA and the rated entity/issuer or related third party. These provisions include Articles 6b and 8c of Regulation (EC) No 1060/2009. A further example is point 8.b of Section C of Annex I thereto, which refers to “credit rating agencies other than those appointed by an issuer or related third party”, and the infringements related to it (points 38 and 39 of Section I of Annex III thereto), which identify CRAs infringing Article 7(4), in conjunction with points (i) and (ii) of point (b) of the first paragraph of point 8 of Section C of Annex I as the ones providing “unsolicited credit ratings or sovereign ratings”. To the same effect, recitals 19 and 32 of Regulation (EU) No 462/2013 of the European Parliament and of the Council¹ link the solicitation status to the issuer-pays model, where a contractual relationship exists between the CRA and the rated entity/issuer.

Therefore, ESMA believes that Regulation (EC) No 1060/2009, when referring to solicited credit ratings, implies a process involving the request of the rated entity/issuer or the related third party, the latter as defined by Article 3(1)(i) of Regulation (EC) No 1060/2009.

[1] Regulation (EU) No 462/2013 of the European Parliament and of the Council of 21 May 2013 amending Regulation (EC) No 1060/2009 on credit rating agencies, OJ L 146, 31.5.2013, p. 1–33.