Where ESMA finds serious indications of one or more infringements listed in Article 42(1), point (a), or of a failure to cooperate or comply with an investigation or inspection under Section 1 of Chapter 4, ESMA shall appoint an independent investigation officer who has not been involved in supervising the relevant benchmarks and who acts independently of ESMA’s Board of Supervisors. The officer shall investigate alleged infringements, take into account comments from persons under investigation, submit a complete file of findings to the Board, request information under Article 48b, conduct investigations and on-site inspections under Articles 48c and 48d, and access all documents gathered by ESMA in its supervisory activities; the officer must give persons the opportunity to be heard before submission and base findings only on facts on which those persons had the opportunity to comment, with rights of defence fully respected.

Upon submission the officer shall notify the persons under investigation, who are entitled to access the file subject to protection of business secrets and excluding confidential information affecting third parties. On the basis of the file and, when requested, after a hearing under Article 48j, ESMA shall decide whether infringements or failures have been committed and may take supervisory measures under Article 48e and impose fines under Article 48f; the officer shall not participate in Board deliberations or decision-making. By 1 October 2021 the Commission shall adopt delegated acts specifying procedural rules for imposing fines or periodic penalty payments. ESMA shall refer matters for criminal prosecution to national authorities where serious indications of criminal offences exist and shall refrain from imposing fines or periodic payments where a prior criminal acquittal or conviction on identical or substantially the same facts has acquired the force of res judicata.