ESMA’s opinion concludes that the proposed measures are justified and proportionate. ESMA’s qualifies this conclusion in relation to the application of the measures in the case of cross-border activities.
ESMA’s opinion also concludes that it is necessary for NCAs of other Member States to take product intervention measures that are at least as stringent as ESMA’s measures. In accordance with Article 43(3) of MiFIR if a competent authority takes actions contrary to an opinion adopted by ESMA, it shall immediately publish on its website a notice fully explaining its reasons for so doing.
NCAs may take product intervention measures in accordance with Article 42 of Regulation (EU) No 600/2014. At least one month before a measure is intended to take effect, an NCA must notify all other NCAs and ESMA of the details of its proposed measure and the related evidence, unless there is an exceptional case where it is necessary to take urgent action.
In accordance with Article 43 of Regulation (EU) No 600/2014, ESMA performs a facilitation and coordination role in relation to such product intervention measures taken by NCAs. After receiving notification from an NCA of its proposed measure, ESMA must adopt an opinion on whether the proposed measure is justified and proportionate. If ESMA considers that the taking of a measure by other NCAs is necessary, it must state this in its opinion.
The opinions that ESMA previously issued on proposed national product intervention measures are published on its website.