(1)

Article 48l of Regulation (EU) 2016/1011 requires ESMA to charge administrators of critical benchmarks and third-country benchmark administrators fees associated with applications for authorisation pursuant to Article 34 and for recognition under Article 32 of that Regulation and annual fees associated with the performance of its tasks in accordance with that Regulation in relation to critical benchmarks and recognised third-country benchmark administrators. Article 48l(2) of Regulation (EU) 2016/1011 requires that such fees be proportionate to the turnover of the benchmark administrator concerned and cover all costs incurred by ESMA for the authorisation or recognition and the performance of its tasks in relation to critical benchmark administrators and third-country benchmark administrators in accordance with that Regulation.

(2)

Fees charged for ESMA’s activities related to administrators of critical benchmarks and of third country benchmarks should be set at a level such as to avoid a significant accumulation of deficit or surplus. Where there is a recurrent significant surplus or deficit, the level of fees should be revised.

(3)

Fees associated with applications for authorisation (‘authorisation fees’) and recognition (‘recognition fees’) should be charged to administrators of critical and of third-country benchmarks to cover ESMA’s costs for processing applications for authorisation and recognition, including costs for verifying that applications are complete, requesting additional information, drafting of decisions and costs relating to the assessment of the systemic importance of critical benchmarks as well as the compliance of third-country benchmark administrators.

(4)

Considering that the assessment of applications are equally resource intensive whether submitted by large or small administrators, the recognition fee should be a lump-sum recognition fee identical for all third country administrators.

(5)

On the basis of the expected workload and the cost this represents for ESMA, to be fully covered by the one-off recognition fee, the cost of assessing a recognition application should be set to EUR 40 000.

(6)

Critical benchmarks are subject to more intense scrutiny under Regulation (EU) 2016/1011, and their administrators need to comply with more stringent organisational requirements. As a result, the authorisation process represents a higher workload for ESMA. Therefore, the authorisation fee for the administrator of a critical benchmark should be significantly higher than the fee for assessing an application for recognition.

(7)

In order to promote the quality and completeness of applications received and in line with ESMA’s approach towards the registration of entities it supervises, the recognition fee should be due at the time of the submission of the application.

(8)

Annual fees are also to be charged to administrators of critical benchmarks and of recognised third-country benchmark to cover ESMA’s costs for the performance of its tasks under Regulation (EU) 2016/1011 as regards the ongoing supervision of such administrators. For third country benchmarks, such fees should cover the implementation and maintenance of cooperation arrangements with third-country authorities and the monitoring of regulatory and supervisory developments in third countries. For critical benchmarks, the fees should also cover the expenses sustained by ESMA with respect to the supervision on an ongoing basis of compliance by those administrators with the requirements set out in Article 48l and Titles VI of Regulation (EU) 2016/1011, including through comparable compliance, where granted.

(9)

The cost of ongoing supervision of a critical benchmark depends on whether it requires ESMA to constitute and chair a college of supervisors for that benchmark, which represents a considerable additional workload. As a result, it is appropriate to differentiate between both cases in establishing supervision fees. By contrast, within the category of critical benchmarks, it should not be necessary to differentiate the supervision fees in accordance with the annual turnover of the administrator, as critical benchmarks by definition have a systemic impact in the Union.

(10)

Applying for recognition in the Union is a decision taken by third country benchmark administrators on commercial grounds, as offering their benchmarks in the Union is expected to generate revenue. Therefore, for recognised third country benchmark administrators, supervisory fees should be modulated as a function of the revenue they derive from the use of these benchmarks in the Union. In cases where no revenue is generated, a minimum supervisory fee should be set at EUR 20 000.

(11)

In order to discourage repeated or unfounded applications, recognition fees and authorisation fees should not be reimbursed in the case where an applicant withdraws its application. As the administrative work required in the case of an application for recognition or for authorisation that is refused is the same as that required in the case of an application that is accepted, recognition fees and authorisation fees should not be reimbursed if authorisation or recognition is refused.

(12)

In accordance with Regulation (EU) 2021/168 of the European Parliament and of the Council (2) third country benchmarks can be used in the Union without the need for the relevant administrators to seek equivalence, recognition or endorsement in a transitional period extended until 2023. During this transitional period, recognition in the Union is an opt-in regime for benchmark administrators located in third countries, which indicates that their benchmarks will remain available for use in the Union after the transitional period ends. As a consequence, during such period, provisions on recognition and supervisory fees should apply only to administrators located in third countries which have voluntarily applied for recognition before the expiry of the transitional period introduced by Regulation (EU) 2021/168 and where the relevant national competent authority or ESMA has granted recognition.

(13)

In order to ensure the smooth application of the new supervisory powers attributed to ESMA, this Regulation should enter into force as a matter of urgency,

(1)

‘critical benchmark’ means a critical benchmark pursuant to article 20(1), points (a) and (c), of Regulation (EU) 2016/1011;

(2)

‘third country benchmark’ means a benchmark whose administrator is located outside the Union.