EBA欧洲银行-BoA-2013-14-28Board-of-Appeal-Decision-on-Appeal-of-GPRC-v-ESMA-10-Ja..._35页_435kb

Summary of the Appeal by Global Private Rating Company "Standard Rating" Ltd

Core Content

This document outlines the appeal by the Global Private Rating Company "Standard Rating" Ltd (the appellant) against the refusal decision by the European Securities and Markets Authority (ESMA) to register it as a credit rating agency. The appeal was brought under Article 60 of Regulation (EU) No 1095/2010, which allows for appeals against decisions made by ESMA under Union acts. The Board of Appeal, consisting of five members, including the President and Rapporteur, examined the case and issued a decision on 10 January 2014.

Main Points and Key Information

I. Procedural Background

• The appellant, an English company registered in the UK, applied for registration as a credit rating agency.
• ESMA refused the registration, citing non-compliance with the requirements.
• The appellant submitted an appeal on 14 August 2013, which included six annexes.
• The Board of Appeal previously rejected preliminary objections regarding the composition of the Board and the admissibility of the appeal.
• The appeal was determined based on written submissions, as the parties agreed not to make oral representations.

II. Facts

• The appellant is a UK-based company, but is affiliated with a Ukrainian rating agency.
• ESMA raised concerns about the appellant's activities in late 2012, leading to the refusal decision on 17 June 2013.
• The refusal decision was sent to the appellant via email and post.
• The appellant submitted its application for registration on 11 December 2012, which was initially deemed incomplete and required additional information.
• The completeness of the application was confirmed on 13 March 2013, triggering a 60-day compliance period.

III. Law

• Credit rating agencies are regulated under Regulation (EC) No 1060/2009 (CRAR), which was amended by Regulation (EU) No 513/2011 and Regulation (EU) No 462/2013.
• The registration process involves two stages: completeness and compliance.
• The time period for the compliance stage is calculated from the date of notification, not the date of the letter.
• The appellant argues that the refusal decision was unfair due to lack of transparency and procedural irregularities.

IV. Parties' Contentions

A. Violation of Registration Procedure

• The appellant claims the refusal decision was issued outside the 60-day compliance period.
• The respondent argues that the period began on 18 March 2013, as the email notification was the effective date of the completeness decision.
• The Board ruled in favor of the respondent, stating that the notification was effective on 15 March 2013, and the period started on that date.

B. Low Transparency of Registration Process

• The appellant alleges that the process lacked transparency, citing a "hidden column" in an Excel file.
• The respondent states the column contained internal working notes, which are standard and not unusual.
• The Board found no procedural unfairness, as the appellant had access to the notes and could address them.

C. Violation of Regulation (EC) No 1049/2001 (Access Regulation)

• The appellant requested access to minutes and documents related to the registration process.
• The respondent provided a large volume of documents but did not send the minutes of the Board of Supervisors.
• The Board concluded that the appellant did not make a confirmatory application under Article 8 of the Access Regulation, and thus the request was outside its jurisdiction.

D. Inappropriate Content of the Refusal Decision

• The appellant argues that the refusal decision was based on erroneous interpretations of its application.
• The refusal decision cited Article 6(1) of CRAR and Section A of Annex I of CRAR, both of which relate to conflicts of interest and organisational requirements.
• The Board found that the refusal decision was fully reasoned and that the appellant had not demonstrated any legal or procedural errors.

Board's Conclusions

• The Board determined that the refusal decision was issued within the legal time frame.
• The registration process was transparent and followed the correct procedures.
• The refusal decision was well-founded and did not contain procedural irregularities.
• The Board concluded that the appellant had not shown that the decision was vitiated by unfairness or errors in interpretation.
• The appeal was dismissed on all grounds.

Decision

• The Board of Appeal dismissed the appeal on 10 January 2014.
• The decision was issued after a thorough examination of the parties' contentions and the applicable legal provisions.
• The Board emphasized that the registration process was conducted in accordance with the law, and that the refusal decision was fully reasoned and justified.