QUESTIONS AND ANSWERS
Questions and Answers
The entry into force of the revised ESMA Regulation (OJ, 27.12.2019) and notably its new provisions applicable to Q&As (New Article 16b) bring changes to ESMA processes and require ESMA to set up a web-based tool to facilitate the submission of questions and the publication of questions received as well as answers to admissible questions. They also require forwarding questions that require the interpretation of Union Law to the European Commission. ESMA will endeavour to answer questions received from market participants and provide guidance on the application of Union law to the best of its capacities. However, it is important to note that only the Court of Justice of the European Union can provide a definitive interpretation of EU law.
ESMA is committed to implementing the new provisions, including setting up the web-based tool. The roll-out of the IT infrastructure will be done on a phased basis and during the course of 2020. Pending the full implementation of this web-based tool, stakeholders can continue submitting questions to ESMA through the Q&A webpage of the ESMA website (please see below).
In the interim period, ESMA has started publishing, in advance, on its website the following questions (available here):
- questions for which a Q&A will be put on the agenda of ESMA's relevant Standing Committee;
- rejected questions, i.e. questions that were tabled for discussions in an ESMA Standing Committee and to which ESMA does not intend to provide an answer; and
- questions forwarded to the European Commission.
ESMA will update the spreadsheet every Friday afternoon (when updates are necessary).
What is the purpose of the Q&A tool?
The tool provides a means for ESMA to collect and address publicly questions from stakeholders with the purpose of ensuring the consistent and effective day-to-day application of Union law within ESMA’s remit (1).
Who can ask questions?
Any person may submit a question to ESMA, including members of the public, consumer associations, financial market participants (including supervised entities) and other stakeholders.
Where possible, legal persons and other bodies are encouraged to coordinate their questions internally before submission to avoid duplication and to ensure all aspects of a question are considered.
What questions can I ask?
Technical questions relating to the application of a legislative act within ESMA’s remit or on any of ESMA’s guidelines or opinions.
How should I submit my question?
Starting 10 September 2020 any new question should be submitted through the new Q&A interface accessible through the link in the Submit a Q&A section below.
What will happen after I submit my question?
Once you submit your question, you will receive an acknowledgement of receipt and ESMA staff will review your question. Should further information and/or clarification be needed to answer your question, ESMA staff will contact you.
ESMA will prioritise the questions received according to the following criteria:
- Type of stakeholder: Questions received from investors’ and regulated firms’ associations, will be prioritised over questions from individual firms. Questions from consultants or law firms will be considered with lower priority unless they are raising a high impact issue or it is demonstrated (as part of the information submitted) that these stakeholders are acting on behalf of financial market participants subject to a legislative act within ESMA’s remit.
- Geographical origin: EU individuals and entities have priority over non-EU stakeholders.
- Level of public attention: Topics receiving a higher number of questions will have a higher priority.
- Relevance of the issue: Questions addressing matters with high market impact, significant cross-border effects, addressing important legal risks or relating to a wide population of affected stakeholders will have a higher priority.
Please note that ESMA endeavours to reply within two months to factual questions received and within four to six months to questions that raise new policy issues. In its final answer, ESMA may either inform the questioner that a new public response has been published on ESMA’s website as a response to the query received, or instead inform the questioner that ESMA will not address the issue(s) raised, explaining the reasons why.
Where appropriate, ESMA may also decide to merge or group together similar questions submitted by multiple parties and provide one answer. ESMA will need to assess each question on a case-by-case basis to determine what next steps, if any, would be beneficial.
Finally, please note that ESMA retains the possibility to reject questions:
- that are unclear/incomplete (i.e. are not clearly phrased or do not respect formal requirements set out in the dedicated submission form available on the ESMA website);
- that are not related to any of the legal texts within ESMA’s remit;
- that ask ESMA to direct submitters to where they can find information on a given topic within the Level 1 text and associated delegated or implementing acts, technical standards and guidelines, or to explain the provisions that are already clearly set out therein;
- that relate to national transposition or implementation of EU legislation, unless this relates to ESMA’s guidelines or peer reviews, for which ESMA publishes compliance tables and reports.
- that seek ESMA advice on issues which only relate to the factual circumstances of an individual submitter (i.e. specific practices, business models or products which would not have any relevance to other persons).
Your personal data will be handled according to the relevant data protection rules as stated in ESMA’s notice on Data Protection.
Where will answers to questions be found?
Q&As will be published in English on ESMA’s website (links to relevant pdf files are available below).
What is the importance of the Q&A tool?
Q&As are a form of guidance on the acts within ESMA’s remit. As is the case with other forms of guidance, Q&As are adopted by ESMA’s Board of Supervisors. This guidance may be informed by consultations with the Securities and Markets Stakeholder Group and the relevant Standing Committees’ Consultative Working Group, where appropriate.
In the areas where ESMA is the direct supervisor of financial market participants, Q&As act to inform its approach.
Q&As are not legally binding and only the Court of Justice of the European Union can provide a definitive interpretation of EU law.
(1)Under Article 1(2) of 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. 84–119 (the ESMA Regulation). Please note that questions that relate to an activity in Article 1(3) of the ESMA Regulation may only be considered where they relate to subject matter that is necessary to ensure the effective and consistent application of an act in Article 1(2).
Submit a Q&A
To submit a Q&A, please fill in this NEW form