(1)

To ensure that market data is provided on a reasonable commercial basis (‘RCB’), with unbiased and fair contractual terms and in a uniform manner across the Union, it is necessary to specify the conditions that market operators and investment firms operating a trading venue, approved publication arrangements (‘APAs’), consolidated tape providers (‘CTPs’) and systematic internalisers should fulfil. Those conditions should ensure that the obligation to provide market data on a RCB is sufficiently clear and applied in an effective and uniform manner whilst taking into account different operating models and costs structures of market operators and investment firms operating a trading venue, APAs, CTPs and systematic internalisers.

(2)

To ensure that market data is provided on a RCB, it is necessary to specify how the costs attributable to market data should be calculated. The calculation of the costs attributable to market data should only include the costs that are directly associated with the production and dissemination of market data. To perform such calculation, costs should be categorised differentiating between costs related to the infrastructure which is used for the purpose of producing and disseminating market data, the physical assets and software which are used for the purpose of enabling the connectivity necessary for the production and dissemination of market data, the cost of personnel, financial costs and other costs, including administrative costs dedicated to producing and disseminating market data. To ensure no double counting of costs takes place, costs pertaining to market data production and dissemination should be allocated, on the basis of the nature of each cost factor, exclusively to one cost category. Audits costs should not be included in the allocation of costs of production and dissemination of market data.

(3)

Market data providers, in particular trading venues, often offer a variety of services beyond the provision of market data. Those entities hence incur diverse costs covering categories such as technology and infrastructure, software development, sales and marketing, analytics, quantitative research, operations, or compliance. To establish fees for market data on a RCB, it is important to differentiate, for instance, the costs which are attributable to the primary business of bringing together buyers and sellers from the costs directly attributable to the production and dissemination of market data.

(4)

In some instances, physical assets, software, personnel, and administrative services might be partly deployed to the production of other services not directly related to the production and dissemination of market data. In that respect, it is necessary to apportion the costs attributable to shared resources based on a clear methodology, specifying how much each resource contributes towards the production and dissemination of market data. Financial costs stemming from shared resources should also be apportioned, on the basis of the allocation of such resources to the production and dissemination of market data. The methodology used for apportioning costs should be reviewed annually to ensure its correctness. Market data providers should provide supporting evidence for the chosen methodology and changes thereof to the relevant competent authority.

(5)

The margin included in the fees for market data should be set to strike a balance between the need to ensure that the production and dissemination of market data remains commercially viable for market data providers and the need to ensure an as wide as possible access to market data. For CTPs, which will be established over the coming years, the margin should be sufficient to support the set-up investment and the commercial viability over the period needed to mature their business.

(6)

To ensure that market data is provided on a RCB, it is necessary to specify how the margin included in the fees for market data should be determined. In particular, the margin should be the operating profit achieved by the market data provider after subtracting from its revenues all the expenses related to the production and dissemination of market data. Such expenses should include operational costs such as infrastructure, assets used for the purpose of connectivity, personnel dedicated to the production and dissemination of market data and financial expenses. To increase transparency, the margin should be expressed as a percentage of costs.

(7)

To ensure that the margin included in the fees for market data is reasonable, it is necessary to specify that the margin should not be disproportionate, when compared to the costs sustained in the production and dissemination of market data, and that the margin should be aligned to margins applicable to the overall business that the market data provider undertakes.

(8)

To ensure non-discrimination among clients, market data providers should have scalable capacities to grant timely access to market data to all clients.

(9)

In the past years, the possibility to apply differentials in fees proportionate to the value which the market data represent to the client led to the creation of multiple customer categories which were applied simultaneously to the same client with consequent duplication of fees.

(10)

To ensure market data is provided on a RCB, market data providers should be able to set up categories of clients based on factual elements, including usage or size of the client. The categorisation of clients should allow market data providers to treat differently clients that present different factual characteristics. Clients within a category should be clearly distinguishable from clients in other categories by one or more elements which set them apart from clients in other categories. A client should only belong to one category. For instance, market data providers could create a separate client category for data redistributors, professional, or non-professional clients. The criteria used to set up categories of clients should be sufficiently general to be applicable to a group of clients. Therefore, categorisation should result in a limited number of categories.

(11)

To ensure that market data is provided on a RCB, the fees charged to clients belonging to a certain category should be set on the basis of the costs sustained to provide data to those clients and a reasonable margin, expressed as a percentage of costs, which should be homogenous amongst clients belonging to the same category. Market data providers should be able to charge different fees for different types of data (e.g. display and non-display data) on the basis of differences in the costs of production and dissemination of such types of data.

(12)

In the last years, a series of issues have been identified in relation to terms and conditions inserted in market data agreements to the disadvantage of clients. Some of those issues concern the practice of market data providers to impose onerous administrative obligations on market data clients, including through frequent and detailed requests on the use of market data. Other practices include the use of ambiguous language in the market data agreements, or their frequent amendments which force the client to deploy resources to interpret or review the agreement. Sometimes, market data clients have been obliged to delete historical data from their systems at contract termination, pay per-location fees or unnecessarily restricted in the way they could use market data. Such practices risk entailing an unjustified cost to access market data. Therefore, for terms and conditions to be fair and unbiased, such practices should be prohibited. The requirements on fair and unbiased contractual terms in this Regulation should complement the other applicable provisions of Union law, in particular Regulation (EU) 2023/2854 of the European Parliament and of the Council (2) (Data Act) as well as other regulation dealing with consumer protection, including Council Directive 93/13/EEC (3) (Unfair Contract Terms Directive).

(13)

To enhance transparency, market data providers should ensure that terms and conditions for the provision of market data are specified in a clear and concise manner. This entails terms and conditions to be understandable by clients autonomously without referring to other documents, unless those documents are clearly identified and easy to retrieve by the clients.

(14)

To allow the client sufficient time to understand a change made to the market data agreement and compare and reflect on other offers available on the market, in case market data agreements allow for unilateral amendments, market data providers should notify the client of any such amendments 90 days in advance. To avoid unilateral amendments that create onerous or burdensome outcomes for the market data client, including amendments resulting in an increase of fees, the agreement should provide the client with the right to terminate the contract when such unilateral changes occur without incurring any penalties. The possibility to terminate and renew the market data agreement should not be used by market data providers to circumvent the application of the safeguards relevant in case of unilateral amendments to the contract.

(15)

To avoid charging clients multiple times for the same provision of market data when buying them from different providers and vendors, when requested by the client, market data should be offered on a per client basis. The CTPs collect data from trading venues and APAs and consolidate those data into a continuous electronic live data stream providing core market data and regulatory data. Therefore, the provision of those data by CTPs should be considered as distinct from the provision of market data by trading venues and APAs. Consequently, CTPs should be able to charge a fee to their client even if that client is charged for market data by a trading venue or an APA.

(16)

To allow market data clients to obtain market data without having to buy other services, market data should be offered unbundled from other services.

(17)

Terms and conditions relating to penalties and audits have been recognised as being excessively burdensome for market data clients and contributing to the increase of cost of market data beyond the cost of production and dissemination and a reasonable margin. To avoid unjustified penalties, penalties should be imposed only on the basis of evidence of infringement of the market data agreement. Furthermore, penalties should not be overly onerous, and their size should be based on the amount the client would have paid in case of compliance with the market data agreement. In addition, to enable the client to make timely arrangements to avoid the repetition of infringements of the market data agreement, the market data provider should impose the penalty within a reasonable time from the infringement occurrence. The reasonable time should not exceed five years from the date an audit is notified. That timeframe is in line with investment firms’ record keeping obligations laid down in Article 16 of Directive 2014/65/EU of the European Parliament and of the Council (4).

(18)

Currently, market data agreements foresee audits which are cumbersome for market data clients because of their frequency, length, and required burden of proof on the market data client. Therefore, to ensure market data agreements are fair and unbiased, where the market data agreement provides that audits may be requested by the market data provider, the terms of the market data agreement should require that the audit be based on specific and credible indications of a potential infringement that occurred no more than five years prior to the date the audit is notified. Additionally, to mitigate the risks of partiality and enhance fairness, market data providers conducting an audit should only be able to require information that is necessary to collect evidence in respect of the alleged infringement.

(19)

To allow clients and competent authorities to effectively assess whether market data is provided on a RCB, market data providers should disclose all information relevant to the offering of market data in clear and unambiguous terms. That information should enable clients and competent authorities to understand market data policies, including how the level of fees for market data is determined, and should be provided with a uniform content and using a uniform format and terminology. Market data providers should provide the competent authority, upon request, with the information on the total costs of production and dissemination of market data, including a reasonable margin, by using a harmonised format.

(20)

To enable clients and competent authorities to understand how fees are calculated, the marked data policy should indicate the unit of count used to invoice the fee to clients. The unit of count may distinguish between types of market data (e.g. display and non-display data) and should be unique for the same type of market data. The unit of count should be related to the costs sustained to provide market data.

(21)

To ensure a smooth and efficient implementation process, it is necessary to set out a deferred date of application to allow market participants authorised before the date of the entry into force of this Regulation adequate time to redraft, negotiate, and conclude revised agreements, thereby minimising possible disruptions. As there are currently no authorised and operational CTPs, a deferred date of application is not needed for CTPs.

(22)

The processing of personal data for the purposes of this Regulation should be carried out in accordance with Union law on the protection of personal data. In that regard, any processing of personal data performed by national competent authorities in application of this Regulation should be carried out in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council (5) and national requirements on the protection of natural persons with regard to the processing of personal data. Any processing of personal data performed by the European Securities and Markets Authority (ESMA) in application of this Regulation should be carried out in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (6).

(23)

This Regulation is based on the draft regulatory technical standards submitted to the Commission by ESMA.

(24)

ESMA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council (7).

(25)

The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered formal comments on 17 March 2025,