EXPLANATORY MEMORANDUM
1.CONTEXT OF THE DELEGATED ACT
Article 38k of Regulation (EU) 600/2014 of the European Parliament and of the Council 1 (‘MiFIR’), sets out rules of procedure that apply to the European Securities and Markets Authority (‘ESMA’) when taking supervisory measures. Article 38k(10) of MiFIR delegates to the Commission the power of adopting a delegated act to further specify the rules of procedure for the exercise of the power to impose fines or periodic penalty payments by ESMA regarding data reporting service providers (‘DRSPs’). This includes provisions on the rights of defence, the collection of fines or periodic penalty payments, and the limitation periods for imposing and enforcing fines and periodic penalty payments.
On 16 February 2022, the Commission adopted Commission Delegated Regulation (EU) 2022/803 2 , based on Article 38k(10) of MiFIR. It set out rules of procedure for the exercise of the power to impose fines or periodic penalty payments by ESMA regarding two specific types of DRSPs, namely approved publication arrangements (‘APAs’) and approved reporting mechanisms (‘ARMs’). Consolidated tape providers (‘CTPs’), which are also DRSPs, were intentionally left out of scope. This was due to the absence of entities providing consolidated tape services in the EU and because the review of the rules governing CTPs under MiFIR was still ongoing at that time.
On 25 November 2021, the Commission put forward a proposal to amend MiFIR 3 . Regulation (EU) 2024/791 of the European Parliament and of the Council 4 (the ‘MiFIR reform’) entered into force on 28 March 2024. 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 equity (shares and exchange-traded funds) and a CTP for over-the-counter (‘OTC’) derivatives. The launch of the three consolidated tapes (‘CTs’) is sequenced as follows:
–CT for bonds: selection procedure started on 3 January 2025;
–CT for equity: selection procedure to start in June 2025;
–CT for OTC derivatives: selection procedure to start in Q1 2026.
In light of the upcoming authorisation process, it is necessary to amend Delegated Regulation (EU) 2022/803 to ensure it covers all types of DRSPs subject to ESMA supervision, including CTPs.
2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
On 18 June 2020, the Commission asked ESMA for a technical advice. ESMA conducted a public consultation which ran from 23 December 2020 to 23 January 2021. On 23 March 2021, ESMA submitted its technical advice to the Commission 5 . ESMA’s technical advice covered all types of DRSPs subject to ESMA supervision, including CTPs.
On 21 September 2023, the Commission consulted the Expert Group of the European Securities Committee (EGESC) on a draft amending Delegated Regulation. No comments were received.
The draft amending Delegated Regulation was published on the Better Regulation portal for a four-week feedback period from 6 February 2025 to 6 March 2025, in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making. Five comments were received. One comment was supportive of the draft Delegated Regulation, while the remaining four were unrelated to this Regulation.
3.LEGAL ELEMENTS OF THE DELEGATED ACT
Article 1 amends Commission Delegated Regulation (EU) 2022/803 to ensure that its scope covers all types of DRSPs subject to ESMA supervision, including CTPs.
COMMISSION DELEGATED REGULATION (EU) …/...
of 7.5.2025
amending Commission Delegated Regulation (EU) 2022/803 as regards rules of procedure for the exercise of the power to impose fines or periodic penalty payments by the European Securities Markets Authority with respect to consolidated tape providers
(Text with EEA relevance)