1.Member States may allow the transfer to the competent authorities of a third country of audit working papers or other documents held by statutory auditors or audit firms approved by them, provided that:
those audit working papers or other documents relate to audits of companies which have issued securities in that third country or which form part of a group issuing statutory consolidated accounts in that third country;
the transfer takes place via the home competent authorities to the competent authorities of that third country and at their request;
the competent authorities of the third country concerned meet requirements which have been declared adequate in accordance with paragraph 3;
there are working arrangements on the basis of reciprocity agreed between the competent authorities concerned;
the transfer of personal data to the third country is in accordance with Chapter IV of Directive 95/46/EC.
2.The working arrangements referred to in paragraph 1(d) shall ensure that:
justification as to the purpose of the request for audit working papers and other documents is provided by the competent authorities;
the persons employed or formerly employed by the competent authorities of the third country that receive the information are subject to obligations of professional secrecy;
the competent authorities of the third country may use audit working papers and other documents only for the exercise of their functions of public oversight, quality assurance and investigations that meet requirements equivalent to those of Articles 29, 30 and 32;
the request from a competent authority of a third country for audit working papers or other documents held by a statutory auditor or audit firm can be refused:
where the provision of those working papers or documents would adversely affect the sovereignty, security or public order of the Community or of the requested Member State, or
where judicial proceedings have already been initiated in respect of the same actions and against the same persons before the authorities of the requested Member State.
3.In order to ensure uniform application of paragraph 1(c), the adequacy referred to therein shall be assessed by the Commission in cooperation with Member States and shall be decided upon by the Commission in accordance with the regulatory procedure referred to in Article 48(2). Member States shall take the measures necessary to comply with the Commission's Decision.
Such assessment of adequacy shall be based on the requirements of Article 36 or essentially equivalent functional results. Any measures taken in this context, designed to amend non essential elements of this Directive by supplementing it and aiming at facilitating cooperation between competent authorities, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 48(2a).
4.In exceptional cases and by way of derogation from paragraph 1, Member States may allow statutory auditors and audit firms approved by them to transfer audit working papers and other documents directly to the competent authorities of a third country, provided that:
investigations have been initiated by the competent authorities in that third country;
the transfer does not conflict with the obligations with which statutory auditors and audit firms are required to comply in relation to the transfer of audit working papers and other documents to their home competent authority;
there are working arrangements with the competent authorities of that third country that allow the competent authorities in the Member State reciprocal direct access to audit working papers and other documents of that third-country's audit entities;
the requesting competent authority of the third country informs in advance the home competent authority of the statutory auditor or audit firm of each direct request for information, indicating the reasons therefor;
the conditions referred to in paragraph 2 are respected.
5.The Commission may ►M1 ————— ◄ specify the exceptional cases referred to in paragraph 4 of this Article in order to facilitate cooperation between competent authorities and to ensure the uniform application of paragraph 4 of this Article. ►M1 That measure, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 48(2a). ◄
6.Member States shall communicate to the Commission the working arrangements referred to in paragraphs 1 and 4.