Dear Mr X,

You recently submitted a complaint to the European Ombudsman against the European Securities and Market Authority (ESMA). You take issue with ESMA’s decision to deem inadmissible your complaint against a private entity. In your complaint to ESMA, you claimed a private entity potentially breached EU law, in particular product governance requirements under the Markets in Financial Instruments Directive II (MiFID II).[1] You argue that ESMA’s decision to deem your complaint inadmissible constitutes a systemic accountability failure.

After a detailed analysis of all the information you have sent us, it was concluded that:

There was no maladministration by ESMA.

ESMA’s decision to deem your complaint as inadmissible appears to be in line with the applicable legal framework. In particular, in accordance with Article 17 of Regulation 1095/2010,[2] and as provided in Annex I of the Rules of Procedure on breach of Union law investigations,[3] “a request is inadmissible if [...] it concerns the acts or omissions of a private person or body, unless the request reveals the involvement of competent authorities or alleges their failure to act in response to those acts or omissions;” (emphasis added). As your complaint concerns a private entity, it does not fall within ESMA’s remit. While we understand your disappointment with ESMA’s decision, ESMA can only act within the limits of its mandate. In this regard, we note that, in its reply of 21 August 2025, ESMA provided you, with useful information on other competent bodies which may be able to assist you with your concerns.

Your argument that there is a systemic accountability failure appears rather to concern how oversight mechanisms in this area are regulated. In this regard, please note that the merits of EU law fall outside the Ombudsman’s mandate.

We appreciate this may not be your desired outcome, but we hope you find these explanations useful.[4]

Yours sincerely,

Tina Nilsson
Head of the Case-handling Unit

Strasbourg, 06/10/2025

 

[1] Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU: https://eur-lex.europa.eu/eli/dir/2014/65/oj/eng.

[2] Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC: https://eur-lex.europa.eu/eli/reg/2010/1095/oj/eng.

[3] Decision of the Board of Supervisors, 25 January 2022, Rules of procedure on breach of Union law investigations, ESMA43-318-11471: https://www.esma.europa.eu/sites/default/files/library/esma43-318-11471_rules_of_procedure_on_breach_of_union_law_investigations.pdf.

[4] Full information on the procedure and rights pertaining to complaints can be found at 

  https://www.ombudsman.europa.eu/en/document/70707