Where ESMA finds serious indications that facts may constitute one or more infringements listed in Annex III, ESMA shall appoint an independent investigating officer who has not been involved in the direct or indirect supervision or registration process of the credit rating agency concerned and who shall act independently from ESMA’s Board of Supervisors. The investigating officer shall investigate alleged infringements, may require information under Article 23b and conduct investigations and on‑site inspections under Articles 23c and 23d in compliance with Article 23a, have access to all documents and information gathered by ESMA in its supervisory activities, and shall give persons subject to investigation an opportunity to be heard and to comment; rights of defence shall be fully respected.

On completion the investigating officer shall submit a complete file with findings to ESMA’s Board of Supervisors, notify the persons concerned and afford them access to the file subject to protection of third‑party business secrets. The Board shall decide whether one or more Annex III infringements have been committed and may take supervisory measures under Article 24 and impose fines under Article 36a, after hearings requested under Articles 25 and 36c. The investigating officer shall not participate in Board deliberations. The Commission shall adopt delegated acts further governing fines, periodic penalty payments and limitation periods. ESMA shall refer matters to national criminal authorities where there are serious indications of criminal offences and shall refrain from imposing fines or periodic penalty payments where a prior acquittal or conviction on substantially the same facts has become res judicata.