(1)

Commission Delegated Regulation (EU) 2022/930 (2) specifies fees relating to the supervision by the European Securities and Markets Authority (‘ESMA’) of data reporting services providers (‘DRSPs’). The scope of that Delegated Regulation was limited to approved publication arrangements (‘APAs’) and approved reporting mechanisms (‘ARMs’) subject to ESMA supervision. The scope of that Delegated Regulation did not cover other DRSPs subject to ESMA supervision, including consolidated tape providers (‘CTPs’). That limited scope was due to the absence of DRSPs providing consolidated tape services in the Union and to the pending review of Regulation (EU) No 600/2014, which was amended by Regulation (EU) 2024/791 of the European Parliament and of the Council (3) (‘MiFIR reform’). The MiFIR reform entered into force on 28 March 2024.

(2)

The MiFIR reform removed obstacles to the emergence of CTPs in the Union and set a timeline for ESMA’s selection and authorisation of a CTP for bonds, a CTP for shares and exchange-traded funds, and a CTP for over-the-counter derivatives (‘OTC derivatives’). In light of the upcoming CTP authorisation process, it is necessary to amend the scope of Delegated Regulation (EU) 2022/930 to ensure it covers all DRSPs subject to ESMA supervision, including CTPs.

(3)

Supervisory fees for CTPs should consist of a fixed authorisation fee and of an annual supervisory fee to cover all the costs associated with the tasks related to their authorisation and ongoing supervision. CTPs are authorised only once they have been selected in a competitive selection procedure, organised by ESMA in accordance with Articles 27da and 27db of Regulation (EU) No 600/2014. In consequence, when CTPs apply for authorisation, they will have already established a relationship with ESMA and therefore they should not be charged a separate application fee.

(4)

The annual supervisory fee charged by ESMA to CTPs should, as a general rule, cover all activities carried out in connection with their supervision. For that purpose, each year, ESMA should assess the direct and indirect supervisory costs in relation to CTPs, including the cost for ESMA’s staff that is directly allocated to supervisory tasks and the cost of horizontal services, such as the cost for the operational and administrative support provided to staff that is directly involved in supervisory tasks. Such assessment should enable ESMA to charge each individual CTP a fee that covers those costs and is proportionate to its revenue compared to the total revenue of all CTPs. A CTP’s revenue that is related to activities that are directly ancillary to core services should be included in the calculation of the applicable turnover if it is likely to have an impact on ESMA supervision of that CTP and is not already covered by separate supervision activities. To match ESMA’s estimated supervisory costs, the annual supervisory fees should be adjusted every year. Fees for ESMA’s supervisory activities carried out in connection with CTPs should be set at a level such as to avoid a deficit or a significant accumulation of a surplus. Where there is a recurrent deficit or surplus, the level of fees should be revised.

(5)

Article 3(2) of Delegated Regulation (EU) 2022/930 requires that the annual supervisory fee for a given DRSP in a given year (n) is to be determined based on its applicable turnover. That applicable turnover is to be calculated in accordance with Article 4 of that Delegated Regulation, which requires that, as a rule, the applicable turnover is to be calculated on the basis of the audited accounts of that DRSP for year (n-2). For CTPs that will start providing services for the first time, there will be no reliable applicable turnover data for the calculation of the annual supervisory fee in the first two years of operation. A special regime based on a fixed annual supervisory fee is therefore required for that period. To prevent the creation of barriers to market entry and to ensure proportionality, while reflecting an estimate of the expenditure necessary to perform the supervisory tasks related to CTPs, that fixed fee should be set at EUR 400 000. In the first year of operation, that fee should be applied on a pro rata basis.

(6)

A distinction should be made between CTPs that start their operations in the first half of the year and CTPs that start their operations in the second half of the year. For CTPs that start operations in the first half of the year, in that year of operation, the annual supervisory fee should be determined based on a pro rata application of the fixed annual supervisory fee. In the second year, those CTPs should pay the full amount of the fixed annual supervisory fee. As of the third year, those CTPs should no longer be subject to the special regime and thus pay the normal annual supervisory fee. For CTPs that start operations in the second half of the year, in that year of operation, the annual supervisory fee should be determined based on a pro rata application of the fixed annual supervisory fee. In the second and third years, those CTPs should pay the full amount of the fixed annual supervisory fee. It is necessary to extend the special regime for those CTPs to the third year given that they are likely to operate for only a very limited period in the first year. As of the fourth year, those CTPs should no longer be subject to the special regime and thus pay the normal annual supervisory fee.

(7)

For the period between the date of authorisation of a CTP and the date when that CTP becomes operational, where those dates are different, a CTP should pay a supervisory fee based on a pro rata application of the fixed authorisation fee to cover the costs incurred by ESMA to (i) supervise the CTP’s preparatory activities during that period, in particular to ensure that appropriate contractual arrangements and effective digital interfaces are put in place with data contributors, (ii) to monitor and steer the CTP’s timely implementation of the relevant data ingestion and data availability functionalities, (iii) to assess the CTP’s technical readiness, and (iv) to monitor the onboarding of all parties concerned and their data.

(8)

The special regime based on a fixed annual supervisory fee should not apply to CTPs that already offer CTP services for the same asset class and that are selected for that asset class for further five years.

(9)

Where at least one CTP is subject to the special regime based on a fixed annual supervisory fee and at least one other CTP is no longer subject to that special regime, the methodology for calculating annual supervisory fees based on the applicable turnover cannot be used. It is therefore necessary to lay down a methodology to determine the annual supervisory fee for each of the CTPs that is no longer under that special regime, which should take into consideration only the estimated expenditure arising from supervisory activities for those CTPs and their applicable turnover.

(10)

To ensure that the applicable turnover of DRSPs is calculated in a harmonised manner, ESMA should convert revenues of DRSPs that are expressed in a currency other than the euro into euro. For that purpose, ESMA should use the official reference rate as published by the European Central Bank.

(11)

For cases where a given APA or ARM becomes subject to ESMA supervision following the reassessment referred to in Article 1(3) of Commission Delegated Regulation (EU) 2022/466 (4), it is necessary to specify the methodology to be used to calculate the annual supervisory fee for the year in which the APA or ARM becomes subject to ESMA supervision.

(12)

Delegated Regulation (EU) 2022/930 should therefore be amended accordingly,

(1)

Article 1 is replaced by the following:

(2)

the following Article 1a is inserted:

(3)

Articles 2 and 3 are replaced by the following:

Article 3

Annual supervisory fees for APAs and ARMs

1.   APAs and ARMs which are subject to ESMA supervision shall be charged an annual supervisory fee.

2.   The total annual supervisory fee and the annual supervisory fee for a given APA or ARM shall be calculated as follows:

(a)	the total annual supervisory fee for a given year (n) shall be the estimate of expenditure relating to the supervision of APAs’ and ARMs’ activities under Regulation (EU) No 600/2014 as included in ESMA’s budget for that year;

(b)	an APA or ARM annual supervisory fee for a given year (n) shall be the total annual supervisory fee determined pursuant to point (a) divided between all APAs and ARMs authorised in year (n), in proportion to their applicable turnover calculated pursuant to Article 4.

3.   In no case shall an APA or ARM authorised by ESMA pay an annual supervisory fee of less than EUR 30 000.

An APA or ARM that is subject to minimum supervisory fees for more than one data reporting service shall pay the minimum supervisory fee for each service provided.

4.   By way of derogation from paragraphs 2 and 3, and without prejudice to Article 2, the first-year fee for APAs and ARMs shall be equal to the amount of the authorisation fee referred to in Article 2(1), point (b), multiplied by a factor that is equal to the days between authorisation and the end of the year divided by the total number of days in that year. The first-year annual supervisory fee shall therefore be calculated as follows:

DRSP first-year fee = Authorisation fee × Coefficient

Coefficient =

An APA or ARM that is authorised during the month of December shall not pay the first-year annual supervisory fee.

5.   By way of derogation from paragraphs 2 and 3, where the reassessment referred to in Article 1(3) of Commission Delegated Regulation (EU) 2022/466 (*1) results in the derogation of ESMA supervision of an APA or ARM, the annual supervisory fee for the year in which the derogation applies shall be calculated solely for the five months of that year during which ESMA continues to be the supervisor of the APA or ARM in accordance with Article 1(4) of Delegated Regulation (EU) 2022/466.

6.   By way of derogation from paragraphs 2 and 3, where the reassessment referred to in Article 1(3) of Delegated Regulation (EU) 2022/466 results in ESMA supervision of an APA or ARM, the annual supervisory fee for the year in which ESMA supervision starts to apply shall be calculated solely for the seven months of that year during which ESMA is the supervisor of the APA or ARM in accordance with Article 1(4) of Delegated Regulation (EU) 2022/466.

(*1)  Commission Delegated Regulation (EU) 2022/466 of 17 December 2021 supplementing Regulation (EU) No 600/2014 of the European Parliament and of the Council by specifying criteria for derogation of the principle that approved publication arrangements and approved reporting mechanisms are supervised by the European Securities Markets Authority (OJ L 96, 24.3.2022, p. 1), ELI: http://data.europa.eu/eli/reg_del/2022/466/oj).’;"

(4)

the following Article 3a is inserted:

‘Article 3a

Annual supervisory fees for CTPs

1.   A CTP which is subject to ESMA supervision shall be charged an annual supervisory fee.

2.   The total annual supervisory fee and the annual supervisory fee for each individual CTP, shall be calculated as follows:

(a)	the total annual supervisory fee for a given year (n) shall be the estimate of expenditure relating to the supervision of the CTPs’ activities under Regulation (EU) No 600/2014 as included in ESMA’s budget for that year;

(b)	the annual supervisory fee for a specific CTP for a given year (n) shall be the total annual supervisory fee for all CTPs calculated in accordance with point (a) divided between all CTPs authorised in year (n), in proportion to their applicable turnover calculated in accordance with Article 4.

3.   By way of derogation from paragraph 2, where a CTP becomes operational before 1 July of a given year (n), the annual supervisory fee for that CTP for years (n) and (n+1) shall be calculated as follows:

(a)	for year (n), paragraphs 4 and 5 shall apply;

(b)	for year (n+1), the annual supervisory fee shall be EUR 400 000.

By way of derogation from paragraph 2, where a CTP becomes operational on or after 1 July of a given year (n), the annual supervisory fee for years (n), (n+1) and (n+2) shall be calculated as follows:

(a)	for year (n), paragraphs 4 and 5 shall apply;

(b)	for years (n+1) and (n+2), the annual supervisory fee shall be EUR 400 000 for each year.

A CTP shall be deemed to become operational on the day of the authorisation granted by ESMA pursuant to Article 27db of Regulation (EU) No 600/2014 or on the day following the expiry of the transition period referred to in Article 27db(4) of Regulation (EU) No 600/2014, where that transition period is granted by ESMA.

4.   The annual supervisory fee for year (n) referred to in paragraph 3 shall be equal to the amount of the annual supervisory fee of EUR 400 000 multiplied by a factor that is equal to the days between the day when a CTP becomes operational and the end of year (n) divided by the total number of days in that year. The annual supervisory fee shall therefore be calculated as follows:

CTP fee for the year (n) = EUR 400 000 × Coefficient

Coefficient =

5.   Without prejudice to Article 2, where ESMA has granted a CTP a transition period pursuant to Article 27db(4) of Regulation (EU) No 600/2014, the annual supervisory fee for year (n) shall also include a fee for the days between the day of the authorisation and the day when a CTP becomes operational. That fee shall be equal to the amount of the authorisation fee referred to in Article 2, point (c), multiplied by a factor that is equal to the days between the day of the authorisation and the day when a CTP becomes operational divided by the total number of days in year (n). That fee shall therefore be calculated as follows:

CTP fee for the days between the authorisation and the day when a CTP becomes operational = Authorisation fee × Coefficient

Coefficient=

6.   By way of derogation from paragraph 2, where the annual supervisory fee for at least one CTP is calculated in accordance with paragraph 3 and the annual supervisory fee for at least one other CTP is not calculated in accordance with that paragraph, the annual supervisory fee for that other CTP or those other CTPs shall be calculated as follows:

(a)

the total annual supervisory fee for a given year (n) shall be the estimate of expenditure relating to the supervision of activities under Regulation (EU) No 600/2014 of all CTPs whose annual supervisory fees are not calculated in accordance with paragraph 3, as included in ESMA’s budget for that year;

(b)

the annual supervisory fee for a specific CTP for a given year (n) shall be the total annual supervisory fee for all CTPs calculated in accordance with point (a) divided between all CTPs authorised in year (n) whose annual supervisory fees are not calculated in accordance with paragraph 3, in proportion to their applicable turnover calculated in accordance with Article 4.’

(5)

Article 4 is amended as follows: