Dear European Securities and Markets Authority,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I would hereby like to ask all correspondance (including emails) and meeting records between ESMA staff and ESMA working group members and representatives of Industry, all kinds of Associations, Trade Unions and Academics on all issues concerning MiFID/MiFIR II between January 2014 and September 2015.

Yours faithfully,
Georgios Vassalos
University of Strasbourg

Info ESMA, Autoridad Europea de Valores y Mercados

Dear sir or Madam,

Thank you for your message.

We value your input and question raised on this issue. As with all
relevant questions that are submitted to us by external sources, we have
taken note of the points raised and are consulting internally as well as
with the relevant ESMA committees to assess whether further public
guidance is needed. Please refer to
[1]https://www.esma.europa.eu/questions-and... for information on
criteria followed by ESMA to accept and prioritise questions.

Please note that ESMA endeavours to reply within two months to factual
questions received and within four to six months to policy questions that
raise new points of interpretation.

Please also note that a question is much more useful when submitted
together with a proposed answer. We would therefore be grateful if you
could suggest possible answers should you need guidance on other issues in
the future.

Finally, please note that this inbox only handles general enquiries. If
you are contacting us to make a complaint, you should first refer to the
complaints section of the ESMA website. There you will find information on
how ESMA can help and who you should contact to make your complaint.

Regards,

ESMA

 

References

Visible links
1. https://www.esma.europa.eu/questions-and...

Enrico Gagliardi, Autoridad Europea de Valores y Mercados

Dear Mr Vassalos,

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

Kind regards

Enrico Gagliardi

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Enrico Gagliardi, Autoridad Europea de Valores y Mercados

Dear Mr Vassalos,
 
I would like to refer you to the request for access to documents you filed
on 17 January pursuant to Regulation (EC) No 1049/2001 (the Request).
 
In particular you asked ESMA to get access to "all correspondance
(including emails) and meeting records between ESMA staff and ESMA working
group members and representatives of Industry, all kinds of Associations,
Trade Unions and Academics on all issues concerning MiFID/MiFIR II between
January 2014 and  September 2015.".
 
In light of the above, we firstly highlight that some relevant documents
relating to your request can be found at the following web link
containing, among other things, Summary of conclusions of meetings of the
Securities and Markets Stakeholder Group where matters relating to your
Request have been discussed:
[1]https://www.esma.europa.eu/databases-lib....
 
However we also note that the content of your Request covers a huge scope
from a temporal and substantive point of view. In particular you are
requesting access to any sort of correspondence and meeting records
between ESMA Staff and members of ESMA working groups and external
stakeholders for a period of almost two years (namely 2014 and 2015). In
this respect, we would like to draw your attention to the fact that ESMA
working groups (e.g. Standing Committees) are mainly composed of
representatives of the National Competent Authorities who therefore do not
form part of the ESMA Staff.
 
In relation to the above, we would like to point out that the
correspondence and the meeting records you are referring to relate to
quite extensive topics such as MiFID II/MiFIR. We also highlight that in
the case at stake, the amount of work entailed does not only depend on the
number of documents referred to in your Request and their volume, but also
on their nature and on the fact that they belong to vast span of different
authors. In this respect attention should be paid to the fact that ESMA
generally receives from and exchanges a huge amount of emails and letters
with different sources on a daily basis.
Furthermore we would like to inform you that the process of retrieving any
possible relevant document is not based on automatic research tools but
rather on manual means therefore requiring someone to do it on a dedicated
and full-time basis. Furthermore given the temporal scope you referred to
(i.e. 2014-2015) we note that possible documents captured by your Request
might have been archived. As a consequence, this would imply an additional
layer of technical difficulty to retrieve such documents.
 
Hence we note that, given the elements and the information referred to
above, processing your Request would impose to ESMA a volume of work which
could very significantly affect the proper working of the relevant
Departments involved. In this respect we consider important, in cases
where concrete, individual examination of the documents would entail a
significant and burdensome amount of administrative work, to balance the
interest in public access to the documents against the burden of work so
caused, in order to safeguard, in those particular cases, the interests of
good administration.
 
In light of the above, we are hereby getting back to you with a view to
finding a fair solution in accordance with Article 6(3) of the Access to
Documents Regulation. In particular we would kindly ask you to better
frame the scope of your Request.
 
Kind regards
 
Enrico Gagliardi
 
 
 

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Dear Enrico Gagliardi,

In reaction to your suggestion to better frame my request, I would like to limit it to corresepondence and meeting reports of ESMA staff, thus droping members of ESMA working groups.

Appreciating the amount of work my request entails, it would seem reasonable to me to extend the response deadline to the end of March.

Yours sincerely,

Georgios Vassalos

Dear Enrico Gagliardi,

The fifteern working days have passed and you haven't reacted to my latest proposal in view of finding a fair solution regarding my request.

Can you please indicate your thoughts or make a new suggestion.

Yours sincerely,
Georgios Vassalos

Enrico Gagliardi, Autoridad Europea de Valores y Mercados

Dear Mr Vassalos,

Thank you for your email and for having sent us a new proposal with a view to finding a fair solution.

We are in the process of discussing your proposal internally and we will get back to you with our position early next week.

Kind regards

Enrico Gagliardi

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Dear Enrico Gagliardi,

Ten days more have passed and I still haven't heard from you.

Can you please reply me?

Yours sincerely,

Georgios Vassalos

Enrico Gagliardi, Autoridad Europea de Valores y Mercados

Thank you for your email. I am out of the office and will return on
Monday, February 26 2018 and will respond to your email in due course. For
any urgent matter, please contact Mina Filippa
([email address])

With kind regards

Enrico Gagliardi

Dear European Securities and Markets Authority,

despite your email on February 19 informing I will have a response by last Friday I still don't have one.

regards,
G. Vassalos

On 2/19/2018 10:23 AM, Mina Filippa wrote:
>
> Dear Mr Vassalos,
>
>
>
> Thank you for your e-mail. We are considering your updated request internally and we will get back to you by the end of this week.
>
>
>
> Kind regards,
>
>
>
> Mina Filippa
>
>
>
> From: Georgios Vassalos [mailto:[email address]]
> Sent: 19 February 2018 09:38
> To: Mina Filippa <[email address]>
> Subject: Delayed 1049 request
>
>
>
> Dear Mrs Filippa,
>
> I was expecting a response from Mr Galgiardi on this request last week:
>
> https://www.asktheeu.org/en/request/cont...
>
> Do you think I could have it this week?
>
> Yours sincerely,
>
> Georgios Vassalos

Info ESMA, Autoridad Europea de Valores y Mercados

Dear sir or Madam,

Thank you for your message.

We value your input and question raised on this issue. As with all
relevant questions that are submitted to us by external sources, we have
taken note of the points raised and are consulting internally as well as
with the relevant ESMA committees to assess whether further public
guidance is needed. Please refer to
[1]https://www.esma.europa.eu/questions-and... for information on
criteria followed by ESMA to accept and prioritise questions.

Please note that ESMA endeavours to reply within two months to factual
questions received and within four to six months to policy questions that
raise new points of interpretation.

Please also note that a question is much more useful when submitted
together with a proposed answer. We would therefore be grateful if you
could suggest possible answers should you need guidance on other issues in
the future.

Finally, please note that this inbox only handles general enquiries. If
you are contacting us to make a complaint, you should first refer to the
complaints section of the ESMA website. There you will find information on
how ESMA can help and who you should contact to make your complaint.

Regards,

ESMA

 

References

Visible links
1. https://www.esma.europa.eu/questions-and...

Enrico Gagliardi, Autoridad Europea de Valores y Mercados

Dear Mr Vassalos,

We acknowledge receipt of your email.

Our apologies for not having come back to you yet.

Please note that the nature and scope of your Request for Access to Documents requires the involvement of different Departments at ESMA. Therefore we would like to draw your attention to the fact that your proposal is still in the process of being discussed internally.

We will revert to you as soon as possible.

Kind regards

Enrico Gagliardi

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Enrico Gagliardi, Autoridad Europea de Valores y Mercados

Dear Mr Vassalos,
 
We would like to refer you to the request for Access to Documents you
submitted to ESMA on 17 January 2018 pursuant to Regulation (EC) No
1049/2001 (the Request). In particular we would like to make reference to
the additional exchange of correspondence we had regarding this issue
where, with a view to finding a fair solution, we kindly asked you to
better frame the scope of your Request.
 
We take note of your email dated 29 January 2018 where you decided to
limit the scope of your Request to correspondence and meeting reports of
ESMA staff, thus excluding members of ESMA working groups and we would
like to thank you for this proposal.
 
In light of the above, we further discussed internally the nature and the
feasibility of your proposal and note the following.
 
Firstly, we would like to draw your attention to the fact that, as already
mentioned in previous correspondence, ESMA has limited resources to
process such a Request which potentially entails a huge amount of
documents produced and received by different sources.
 
Secondly we note that the number of representatives of industry, all kinds
of associations, trade unions and academics potentially falling within the
scope of your Request is significantly high. Therefore we would kindly ask
you to consider to limit the scope of the stakeholders covered by your
Request further so that our research would be feasible without disrupting
the orderly function of the Authority.
 
Against the background referred to above and the general concerns
expressed regarding proportionality, we would consider fair to provide you
with the following set of documents (besides the information on the
relevant documents of the Securities and Markets Stakeholder Group (SMSG)
which are available on our website, as already outlined in my previous
email):
 

 1. Meeting and minutes of the SMSG falling within the temporal and
substantive scope of your Request.

 

 2. Meetings and minutes of the Consultative Working Group (CWG) falling
within the temporal and substantive scope of your Request. CWGs are
technical stakeholder groups, composed of industry but also academic
and some consumer representatives, that are used as sounding boards
for the relevant ESMA Groups of national authority experts. 

 

 3. Every written (letter and email) communication between top management
(the Chair and the Executive Director of ESMA) and the SMSG and its
members falling within the temporal and substantive scope of your
Request.

 
Concerning the deadline to give you access to these document we would
propose 31 March 2018 as also indicated by you in your previous email on
this matter.
 
Kind regards
 
Enrico Gagliardi
 

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Dear Enrico Gagliardi,

I sincerely regret I cannot limit the scope of the stakeholders covered by my request. This is because one of my research objectives is to come up with statistics on the different types of stakeholders ESMA interacted with on MiFID II.

Please note that except the three types of documents you are mentioning in your last response, my request also covers written (letter and email) communication of all members of the ESMA staff who participated in working groups doing work on MiFID II: the Secondary Markets Standing Committee (SMSC), the Commodity Derivatives Task Force, the Market Data Working Group (MDWG), the Post-Trading Standing Committee, the Investor Protection & Intermediaries Standing Comittee and whatever other working group may have worked on MiFID II)

In order not to disrupt the orderly function of the Authority, I accept the deadline to be moved to April 16.

Yours sincerely,

Georgios Vassalos

Enrico Gagliardi, Autoridad Europea de Valores y Mercados

2 Adjuntos

Dear Mr Vassalos,

 

We would like to refer you to your Request for Access to Documents you
submitted to ESMA (the Request). In particular, note is taken of all the
exchanges of correspondence on this issue and the proposal of ESMA to find
a fair solution pursuant to Article 6(3) of Regulation (EC) No 1049/2001
(Access to Documents Regulation).

 

ESMA has further analysed your Request against the criteria and
requirements of the Access to Documents Regulation by balancing them
against the need to ensure the proper and effective functioning of ESMA as
a Union body as well as the fulfilment of its duties and tasks.

 

Against this background, we note the following.

 

Firstly we would like to stress again that the nature of your Request
covers, from a substantive and temporal point of view, a significant scope
relating to extensive and complex pieces of legislation, i.e. MiFID
II/MiFIR which required a huge amount of technical work from ESMA.

 

Secondly, and as already highlighted in previous correspondence, we note
that in the current case, the content, the description and the structure
of your Request plays a very important role when taking a decision on how
to process it. As you restated in one of your emails, you requested access
to “written (letter and email) communication of all members of the ESMA
staff who participated in working groups doing work on MiFID II: the
Secondary Markets Standing Committee (SMSC), the Commodity Derivatives
Task Force, the Market Data Working Group (MDWG), the Post-Trading
Standing Committee, the Investor Protection & Intermediaries Standing
Committee and whatever other working group may have worked on MiFID
II)”[emphasis added].

 

In this respect the topics included in your Request concern a very general
and large span of various documents, in different forms (e.g. emails,
agendas, internal notes). Furthermore we would like to restate that the
amount of work entailed to gather them does not only depend on their
actual number and volume, but also on their nature and on the fact that,
in the Request at stake, they belong to a vast range of different authors
as a lot of Departments of ESMA were deeply involved in their preparation.

 

Therefore and taking into account the elements referred to above, we would
like to reaffirm the position already expressed in previous correspondence
according to which, processing your Request would impose on ESMA a
significant amount of work which could substantially affect the proper
working of the relevant Departments involved.

 

In this respect ESMA deems it important, in cases where concrete,
individual examination of the documents would entail a significant and
burdensome amount of administrative work, to balance the interest in
public access to the documents against the burden of work so caused, in
order to protect, in those particular cases, the interests of good
administration and the performance of the tasks and duties to be carried
out by the Authority.

 

Nonetheless, we have done our utmost to fulfil your Request in a manner
that aims to find that right balance between public interest and the
interest of good administration. As proposed in the previous email sent to
you on this matter, please therefore find attached a first batch of the
following documents which ESMA considers fair and proportionate to provide
to you (besides the information on the relevant documents of the
Securities and Markets Stakeholder Group (SMSG) already given to you in
previous correspondence):

 

1)    Agendas of the SMSG falling within the temporal and substantive
scope of your Request.

 

2)    Agendas and minutes of the Consultative Working Group (CWG) falling
within the temporal and substantive scope of your Request.

 

3)    Every written (letter and email) communication between top
management (the Chair and the Executive Director of ESMA) and the SMSG and
its members falling within the temporal and substantive scope of your
Request.

 

Given the amount of documents gathered, it was not possible for ESMA to
process all of them at the same time. Hence, a second batch of documents
will be sent to you in the course of the next week. In this respect please
note that gathering those documents already required long and deep
research to be performed by the relevant members of ESMA Staff concerned,
which meant a substantive effort quantifiable in quite a few working days.

 

In addition to that, please note that some of the requested documents
contained certain personal data, the processing (transmission) of which
needed to be assessed against the requirements of Regulation (EC) No
45/2001 (Data Protection Regulation). In this respect we note that you did
not provide any element or clear explanation to demonstrate the necessity
for those personal data to be processed, neither do we see any
justification for doing so. In light of this, after a careful assessment
of the said documents, it was concluded that the processing of the
relevant personal data was not necessary. As a consequence the exemption
laid down in Article 4(1)(b) of the Access to Documents Regulation
applies.

 

Finally we would like to refer you to Article 7(2) of the Access to
Documents Regulation which states that in the event of a total or partial
refusal, an applicant may, within 15 working days of receiving this reply,
make a confirmatory request asking ESMA to reconsider its position.

 

With kind regards

 

Enrico Gagliardi

Dear Mr Gagliardi,

While waiting for the second batch you promised, I have to stress that what you are offering (agendas and minutes plus communication between the SMSG and ESMA's top mangement) is missing the main point of my request which is correspondance (including emails and meeting records) between ESMA staff and representatives of Industry and other non-governmental actors.

We still haven't found a commonly agreed fair solution as provided by EU legislation, four months after my initial request in part due to your long periods of silence (from January 29 to March 2 and from March 13 to April 16).

In order to find this fair solution, I will accept to further limit the scope of my request (I already did by exempting staff of national regulators doing ESMA work), by asking correspondence of the ESMA staff participating only in the Secondary Markets Standing Committee (SMSC) and the Commodity Derivatives Task Force, thus dropping the correspondence of ESMA staff participating in the Market Data Working Group (MDWG), the Post-Trading Standing Committee and the Investor Protection & Intermediaries Standing Comittee.

Yours sincerely,

Georgios Vassalos

Enrico Gagliardi, Autoridad Europea de Valores y Mercados

1 Adjuntos

Dear Mr Vassalos,

As indicated in our previous correspondence, please find attached the second batch of documents which ESMA considers fair and proportionate to provide to you.

While ESMA reiterates its position according to which processing your Request would impose on ESMA a significant amount of work which could substantially affect the proper working of the relevant Departments involved, we would like to stress that ESMA is continuously committed to further enhance transparency.

In light of this principle, we would like to draw your attention to the following meeting calendar on the website of ESMA which outlines the main public speaking engagements of the Chair, the Executive Director and other members of ESMA Staff: https://www.esma.europa.eu/press-news/ke....

With kind regards

Enrico Gagliardi

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Dear Enrico Gagliardi,

I thank you for the documents you have sent me so far (1. Meeting and minutes of the SMSG, 2. Meetings and minutes of the Consultative Working Group (CWG), 3. written communication between ESMA top management and the SMSG), but I remind you these don't cover the main point of my request which is correspondance (including emails and meeting records) between ESMA staff and representatives of Industry and other non-governmental actors.

Almost five months, after my initial request we still haven't found a commonly agreed fair solution.

I therfore urge you to react to my latest proposal of April 19, 2018

Yours sincerely,

Georgios Vassalos

Enrico Gagliardi, Autoridad Europea de Valores y Mercados

Thank you for your email. I am out of the office and will return on
Monday, May 14 2018 and will respond to your email in due course. For any
urgent matter, please contact Mina Filippa ([email address])

With kind regards

Enrico Gagliardi

Dear European Securities and Markets Authority,

Please pass this on to Verena Ross, executive director of ESMA or whoever reviews confirmatory applications in ESMA.

I am filing a confirmatory application with regards to my access to documents request 'Contacts on MiFID II (January 2014-September 2015)' for the following reasons:

1) ESMA ignored the main point of my request which is correspondance (including emails and meeting records) between ESMA staff and representatives of Industry and other non-governmental actors.

2) In the five months passed since my initial request, ESMA wasn't responsive enough to find a commonly agreed fair solution to my request as provided by the legislation.

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

Yours faithfully,

Georgios Vassalos

Info ESMA, Autoridad Europea de Valores y Mercados

Dear sir or Madam,

Thank you for your message.

We value your input and question raised on this issue. As with all
relevant questions that are submitted to us by external sources, we have
taken note of the points raised and are consulting internally as well as
with the relevant ESMA committees to assess whether further public
guidance is needed. Please refer to
[1]https://www.esma.europa.eu/questions-and... for information on
criteria followed by ESMA to accept and prioritise questions.

Please note that ESMA endeavours to reply within two months to factual
questions received and within four to six months to policy questions that
raise new points of interpretation.

Please also note that a question is much more useful when submitted
together with a proposed answer. We would therefore be grateful if you
could suggest possible answers should you need guidance on other issues in
the future.

Finally, please note that this inbox only handles general enquiries. If
you are contacting us to make a complaint, you should first refer to the
complaints section of the ESMA website. There you will find information on
how ESMA can help and who you should contact to make your complaint.

Regards,

ESMA

 

References

Visible links
1. https://www.esma.europa.eu/questions-and...

Verena Ross, Autoridad Europea de Valores y Mercados

1 Adjuntos

Dear Mr Vassalos,

 

We would like to refer you to the email you sent to ESMA on 25 May 2018 in
which you made reference to your request for Access to Documents (the
Request).

 

In your Request you claimed, among other things, that ESMA did not provide
you with the correspondence between ESMA Staff dealing with certain
matters relating to MiFID II/MiFIR and representatives of Industry and
other non-governmental actors.

 

Firstly, and as already highlighted in previous correspondence, we would
like to restate that ESMA considers the principle of transparency
enshrined in Regulation (EC) No 1049/2001 (Access to Documents Regulation)
of utmost importance. In light of this and in addition to the two big
batches of documents you already received in the previous weeks amounting
to more than 500 pages, ESMA has further assessed the content of your
Request and decided to provide you with a supplementary document which we
believe would additionally prove ESMA’s commitment to ensure a high level
of openness while preserving the proper and effective functioning of ESMA
as a Union body as well as the fulfilment of its duties and tasks.

 

Against this background please find attached a copy of an excel table
reporting the meetings held by members of ESMA Staff dealing with matters
relating to the content of your Request with the industry between January
2014-September 2015 together with a brief description of the topics
discussed on those occasions.

 

Finally as regards your request to get access to correspondence between
ESMA Staff and representatives of industry and other non-governmental
actors, we would like to refer you to the position taken and communicated
in ESMA’s final response sent to you on 16 April 2018 where, among other
things, it was stated that processing your Request would impose on ESMA a
significant amount of work which could substantially affect the proper
working of the relevant Departments involved.

 

Therefore we consider important to stress again that ESMA believes it is
reasonable, in cases where concrete, individual examination of the
documents would entail a significant and burdensome amount of
administrative work, to balance the interest in public access to the
documents against the burden of work so caused, in order to protect, in
those particular cases, the interests of good administration and the
performance of the tasks and duties to be carried out by the Authority.

 

Please note that with the additional document attached to this email, ESMA
considers this issue definitely closed.

 

Best regards

 

 

Verena Ross

 

Executive Director

European Securities and Markets Authority (ESMA)

103, rue de Grenelle, 75007 Paris – France

Tel:  + 33 1 58 36 43 28

Cell : +33 7 86 29 86 18

Fax: +33 1 58 36 43 30

Email: [1][email address]

 

 

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