Article 38 (1) SSR agreements

Bryan James made this acceso a documentos request to Autoridad Europea de Valores y Mercados

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La solicitud fue exitosa.

Dear European Securities and Markets Authority,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

Under Article 38 (1) - Cooperation with third countries of SSR/ REGULATION (EU) No 236/2012  "A competent authority shall inform ESMA and the competent authorities of the other Member States where it proposes to enter into such an arrangement" 

My request is this : 1: can you inform me of which competent authorities within the EU/EEA have entered into agreements with competent authorities in the United States (SEC/FINRA) ? 2: can you provide any information in regard to the cooperation agreements entered into (eg, what type of information is being shared (net short interests, settlement fails, uncovered short positions )). 3: Can you also include the dates you were notified of when the agreements were entered into and with whom.
Thank you .
Yours faithfully,
Bryan

Yours faithfully,

Bryan James

Enrico Gagliardi, Autoridad Europea de Valores y Mercados

Dear Bryan James,

We acknowledge receipt of your request and get back to you in due course.

With kind regards

Enrico Gagliardi

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Dear European Securities and Markets Authority,

Please pass this on to the person who reviews confirmatory applications.

I am filing the following confirmatory application with regards to my access to documents request 'Article 38 (1) SSR agreements'.

[ ESMA has not responded to my request ]

A full history of my request and all correspondence is available on the Internet at this address: http://www.asktheeu.org/en/request/artic...

Yours faithfully,

Bryan James

Trading_Unit, Autoridad Europea de Valores y Mercados

Dear Sir,

Thank you for reaching out to ESMA.

Firstly, we would like to inform you that your request dated 9 January 2023, given its formulation, content and scope, targets specific information rather documents and should thus be qualified and treated as such, within 2 months as envisaged in the ESMA Code of Good Administrative Behaviour.

With respect to your specific query, please be aware that none of the EU National Competent Authorities (NCAs) have entered into cooperation arrangements under Article 38 of the Short Selling Regulation with supervisory authorities in the United States. In fact, NCAs relied on the IOSCO Multilateral Memorandum of Understanding (MMoU) (signed in 2002 and revised in 2012) concerning exchange of information among IOSCO Members to ensure compliance with, and enforcement of, their securities and derivatives laws and regulations.

Kind regards

ESMA Trading Unit

Market and Digital Innovation Department

201-203 rue de Bercy, 75012 Paris - France
Email: [email address]
www.esma.europa.eu

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Dear Trading_Unit,

Given that there were NO records to find, it’s a bit disingenuous to claim that it was a complicated request that needed an extension, of which you never informed me of.
The Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and The Exchange of Information is NOT a supervisory mechanism to monitor and undercover predatory short-selling. It certainly is completely useless for this purpose as ESMA in their infinite wisdom by adopting Article 16 of SSR exempts shares admitted to trading on a trading venue within the EU where the principal venue for the trading of shares is located in a third country from the obligation to notify Relevant Competent Authorities of significant NSPs in shares (Article 6) and the restrictions on uncovered short sales (Naked Shorts) in shares (Article 12), so there isn’t any information collected by the member states’ regulators to share should the Americans request it.

The fact that none of the member states have entered into agreements with the United States’ regulators to ensure these exemptions are not abused is probably the biggest financial scandal in history. The fact that you are now spinning that scandal with this ridiculous reference to the IOSCO Multilateral Memorandum of Understanding - that doesn’t even mention short-selling once - would be laughable, if it were not for the untenable danger that the Article 16 SSR exemptions and total lack of supervision are putting on the global economy; and, no doubt countless losses to investors, companies and other stakeholders in the past.

But well done on taking responsibility.

Thank you for the response.

Yours sincerely,

Bryan James