Commission Delegated Regulation (EU) 2019/360 of 13 December 2018 supplementing Regulation (EU) 2015/2365 of the European Parliament and of the Council with regard to fees charged by the European Securities and Markets Authority to trade repositories (Text with EEA relevance.)

CHAPTER I

GENERAL PROVISIONS

Article 1

Recovery of supervisory costs in full

The fees charged to trade repositories shall cover:

(a) all direct and indirect costs relating to the registration and supervision of trade repositories by ESMA in accordance with Regulation (EU) 2015/2365, including those costs resulting from the recognition of trade repositories as well as costs resulting from the extension of registration or extension of recognition for trade repositories that have already been registered or recognised under Regulation (EU) No 648/2012;

(b) all costs for the reimbursement of direct and indirect costs of competent authorities that have carried out work pursuant to Regulation (EU) 2015/2365, and as a result of any delegation of tasks pursuant to Article 74 of Regulation (EU) No 648/2012 and in accordance with Article 9 of Regulation (EU) 2015/2365.

Article 2

Applicable turnover

Trade repositories registered under Regulation (EU) 2015/2365 only shall keep audited accounts for the purposes of this Regulation which distinguish between at least the following:

(a) revenues generated from core functions of centrally collecting and maintaining records of SFTs under Regulation (EU) 2015/2365;

(b) revenues generated from ancillary services that are directly related to centrally collecting and maintaining records of SFTs under Regulation (EU) 2015/2365.

The applicable revenues from ancillary services of the trade repository for a given year (n) shall be the revenues from the services determined under point (b).

Trade repositories registered under both Regulation (EU) 2015/2365 and Regulation (EU) No 648/2012 shall keep audited accounts for the purposes of this Regulation which distinguish between at least the following:

(a) revenues generated from core functions of centrally collecting and maintaining records of SFTs under Regulation (EU) 2015/2365;

(b) revenues generated from core functions of centrally collecting and maintaining records of derivatives under Regulation (EU) No 648/2012;

(c) revenues generated from ancillary services that are directly related to centrally collecting and maintaining records of SFTs under Regulation (EU) 2015/2365;

(d) revenues generated from ancillary services that are directly related to both centrally collecting and maintaining records of SFTs under Regulation (EU) 2015/2365 and centrally collecting and maintaining records of derivatives under Regulation (EU) No 648/2012.

The applicable revenues from ancillary services of the trade repository for a given year (n) shall be the sum of

— the revenues referred to in point (c) and

— a share of the revenues referred to in point (d).

The share of the revenues referred to in point (d) shall be equal to the revenues referred to in point (a), divided by the sum of

— the revenues referred to in point (a) and

— the revenues referred to in point (b).

The applicable turnover of a given trade repository for a given year (n) shall be the sum of the amounts referred to in points (a) and (b), divided by the sum of the amounts referred to in points (c) and (d):

(a) the revenues generated from the core functions of centrally collecting and maintaining records of SFTs under Regulation (EU) 2015/2365 on the basis of the audited accounts of the year (n–2);

(b) the applicable revenues from the ancillary services determined in accordance with paragraphs 1 and 2, as applicable, on the basis of the audited accounts of the year (n–2);

(c) the total revenues of all registered trade repositories generated from the core functions of centrally collecting and maintaining records of SFTs under Regulation (EU) 2015/2365 on the basis of the audited accounts of the year (n–2);

(d) the total applicable revenues from the ancillary services of all registered trade repositories determined in accordance with paragraphs 1 and 2, as applicable, on the basis of the audited accounts of the year (n–2).

CHAPTER II

FEES

Article 4

Types of fees

Trade repositories established in the Union that apply for registration in accordance with Article 5(1) of Regulation (EU) 2015/2365 shall be charged the following types of fees:

(a) registration and extension of registration fees in accordance with Article 5;

(b) annual supervisory fees in accordance with Article 6.

Trade repositories established in third countries that apply for recognition in accordance with Article 19(4) of Regulation (EU) 2015/2365 shall be charged the following types of fees:

(a) recognition or extension of registration fees in accordance with paragraphs 1 and 2 of Article 7;

(b) annual supervisory fees for recognised trade repositories in accordance with Article 7(3).

Article 5

Registration fee and extension of registration fee

A trade repository shall be deemed to offer ancillary services in any of the following situations:

(a) where it directly provides ancillary services;

(b) where an entity belonging to the same group as the trade repository provides ancillary services;

(c) where an entity with which the trade repository has concluded an agreement in the context of the trading or post-trading chain or business line to cooperate in the provision of services provides the ancillary services.

Where a trade repository is applying for registration and has already been registered under Title VI, Chapter 1 of Regulation (EU) No 648/2012, the trade repository shall pay an extension of registration fee of:

(a) EUR 50 000 for trade repositories that provide ancillary services as referred to in paragraph 2;

(b) EUR 32 500 for low expected turnover trade repositories that do not provide ancillary services as referred to in paragraph 2.

Article 6

Annual supervisory fees for registered trade repositories and trade repositories that have extended their registration

The total annual supervisory fee and the annual supervisory fee for a given trade repository for a given year (n) 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 registered trade repositories’ activities under Regulation (EU) 2015/2365 as included in ESMA’s budget for that year;

(b) a trade repository's annual supervisory fee for a given year (n) shall be the total annual supervisory fee determined pursuant to point (a), divided between all trade repositories registered in year n – 1, in proportion to their applicable turnover calculated pursuant to Article 2(3).

By way of derogation from paragraphs 1, 2 and 3, a registered trade repository shall pay, in the year of its registration (‘year (n)’), an initial supervisory fee (‘SF(n)’) equal to the following:

where:

The trade repository shall pay the supervisory fee of the first year after it has been notified by ESMA that its application has been successful and within 30 calendar days from the date of issuance of ESMA’s invoice. However, where a trade repository is registered during the month of December, that trade repository shall not be required to pay an annual supervisory fee for the year in which it was registered.

Article 7

Fees for third country trade repositories

A trade repository applying for recognition under Article 19(4)(a) of Regulation (EU) 2015/2365 shall pay a recognition fee calculated as the sum of the following:

(a) EUR 20 000 ;

(b) the amount resulting from dividing EUR 35 000 among the total number of trade repositories from the same third country that are either recognised by ESMA, or that have applied for recognition but have not been yet recognised.

CHAPTER III

PAYMENT AND REIMBURSEMENT CONDITIONS

Article 8

General payment modalities

Article 9

Payment of registration fees

Article 10

Payment of annual supervisory fees

Article 11

Payment of fees for third country trade repositories

ESMA shall not refund the recognition fee.

Article 12

Reimbursement of competent authorities

CHAPTER IV

TRANSITIONAL AND FINAL PROVISIONS

Article 13

Calculation of interim supervisory fees

Article 14

Payment of registration fees and fees for third country trade repositories in 2019

Article 15

Annual supervisory fee for 2020 for trade repositories registered or having extended their registration in 2019

For the purposes of calculating the annual supervisory fee for 2020 in accordance with Article 6 for a trade repository registered in 2019 under Article 5(5) of Regulation (EU) 2015/2365, the applicable turnover of the trade repository shall be the sum of

— the revenues generated from the core functions of centrally collecting and maintaining records of SFTs during the period from 1 January 2020 to 30 June 2020 and

— the applicable revenues from ancillary services of the trade repository in accordance with paragraphs 1 and 2 of Article 2 during the period from 1 January 2020 to 30 June 2020

divided by the sum of

— the total revenues generated from the core functions of centrally collecting and maintaining records of SFTs during the period from 1 January 2020 to 30 June 2020 of all registered trade repositories and

— the applicable revenues from ancillary services in accordance with paragraphs 1 and 2 of Article 2 during the period from 1 January 2020 to 30 June 2020 of all registered trade repositories.

The first instalment shall be due on 28 February 2020 and shall amount to the registration fee paid by the trade repository in 2019 pursuant to Article 5.

The second instalment shall be due on 31 October 2020. The amount of the second instalment shall be the annual supervisory fee calculated according to paragraph 1 minus the amount of the first instalment.

Where the amount paid by a trade repository in the first instalment is higher than the annual supervisory fee calculated according to paragraph 1, ESMA shall reimburse the trade repository the difference between the amount paid in the first instalment and the annual supervisory fee calculated according to paragraph 1.

Trade repositories will be charged the difference between the annual supervisory fee for 2020 actually paid pursuant to paragraph 1 and the annual supervisory fee for 2020 to be paid as a consequence of any change to the applicable turnover referred to in the first subparagraph.

ESMA shall send the invoice for any additional payment referred to in the previous subparagraph at least 30 days before the respective payment date.

Article 15a

Annual supervisory fee for 2021 for trade repositories registered as of 31 December 2020

For the purposes of paragraph 1, the applicable turnover of the trade repository shall be the sum of:

— the revenues generated from the core functions of centrally collecting and maintaining records of SFTs during the period from 1 January 2021 to 30 June 2021, and

— the applicable revenues from ancillary services of the trade repository in accordance with paragraphs 1 and 2 of Article 2 during the period from 1 January 2021 to 30 June 2021,

divided by the sum of:

— the total revenues generated from the core functions of centrally collecting and maintaining records of SFTs during the period from 1 January 2021 to 30 June 2021 of all registered trade repositories, and

— the applicable revenues from ancillary services in accordance with paragraphs 1 and 2 of Article 2 during the period from 1 January 2021 to 30 June 2021 of all registered trade repositories.

Where the amount already paid by a trade repository pursuant to Article 10(1) before 26 May 2021 is higher than the annual supervisory fee calculated in accordance with paragraph 1, ESMA shall reimburse the difference to the trade repository.

Trade repositories shall be charged any difference between the annual supervisory fee for 2021 actually paid and the annual supervisory fee that would have been due for 2021 if the calculation of the applicable turnover had been based on the indicators reported pursuant to the first subparagraph.

ESMA shall send the invoice for any additional payment pursuant to the second subparagraph at least 30 days before the respective payment date.

Article 16

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all the Member States.

ANNEX

FIRST YEAR INTERIM FEES

Part 1

Interim supervisory fee for the year of a trade repository's registration where the reporting obligation starts in the following year

1.The trade repository's interim supervisory fee shall be the lower of the following:

(a) the trade repository's registration fee due in accordance with Article 5 of the present Regulation;

(b) the trade repository's registration fee due in accordance with Article 5 of the present Regulation multiplied by the ratio between the working days from its date of registration until the end of the year and 150 working days.

This calculation shall be made as follows:

TR interim supervisory fee = Min (Registration fee, Registration fee * Coefficient)

2.The interim supervisory fee shall be paid in full 60 days after the entry into force of this Regulation or 30 days after the notification referred to in Article 8(1) of Regulation (EU) 2015/2365, whichever is the later.

Part 2

Interim supervisory fee for the year of a trade repository's registration where the reporting obligation starts in the first six months of the same year

1.The trade repository's interim supervisory fee shall be the total annual supervisory fee determined pursuant to Article 6(2)(a) of the present Regulation divided between all trade repositories registered in that year, in proportion to the applicable turnover calculated pursuant to paragraph 2.

2.For the purposes of calculating the interim supervisory fee the applicable turnover of a trade repository shall be the sum of

— the revenues generated from the core functions of centrally collecting and maintaining records of SFTs during the period from 1 January to 30 June of the year during which the trade repository was registered and

— the applicable revenues from ancillary services of the trade repository in accordance with paragraphs 1 and 2 of Article 2 of the present Regulation, as applicable, during the period from 1 January to 30 June of the year during which the trade repository was registered

divided by the total revenues generated from the core functions of centrally collecting and maintaining records of SFTs and the applicable revenues from ancillary services of all registered trade repositories in accordance with paragraphs 1 and 2 of Article 2 of the present Regulation, as applicable, during the period from 1 January to 30 June of that year.

3.The interim supervisory fee shall be paid in two instalments.

The first instalment shall be due 30 days after the notification referred to in Article 8(1) of Regulation (EU) 2015/2365 and shall amount to the trade repository's registration fee pursuant to Article 5 of the present Regulation.

The second instalment shall be due on 31 October. The amount of the second instalment shall be the interim supervisory fee calculated according to paragraph 1 minus the amount of the first instalment.

Where the amount paid by a trade repository in the first instalment is higher than the interim supervisory fee calculated according to paragraph 1, ESMA shall reimburse the difference between the amount paid in the first instalment and the interim supervisory fee calculated according to paragraph 1 to the trade repository.

4.When the audited accounts for the year of registration become available, trade repositories shall report to ESMA any change in the applicable turnover calculated in accordance with paragraph 1, stemming from the difference between the final data for the period from 1 January to 30 June and the provisional data used for the calculation pursuant to paragraph 1.

Trade repositories will be charged the difference between the annual supervisory fee for the year of registration actually paid pursuant to paragraph 3 and the annual supervisory fee for the year of registration to be paid as a consequence of any change to the applicable turnover referred to in the first subparagraph.

5.Without prejudice to paragraphs 1 and 4, the interim supervisory fee shall not be lower than 15 000 euros.

Part 3

Interim supervisory fee for the year of a trade repository's registration where the reporting obligation starts in the last six months of the same year

1.The trade repository's interim supervisory fee shall be the total supervisory fee determined pursuant to Article 6(2)(a) of the present Regulation, divided between all trade repositories, in proportion to the ratio of the trade repository's registration fee paid to ESMA to the total of all registration fees paid by trade repositories to ESMA in that year.

2.The fee determined pursuant to paragraph 1 shall be due 30 days after the notification referred to in Article 8(1) of Regulation (EU) 2015/2365.