LegalizeCommission Delegated Regulation (EU) 2022/805 of 16 February 2022 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council by specifying fees applicable to the supervision by the European Securities Markets Authority of certain benchmark administrators (Text with EEA relevance)
Article 1
Subject matter and scope
This Regulation lays down rules on fees that ESMA can charge to benchmark administrators in relation to registration, authorisation, recognition, endorsement and supervision.
Article 2
Definitions
For the purposes of this Regulation, the following definitions apply:
- (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.
Article 2a
Recovery of supervisory costs in full
The fees charged to benchmark administrators shall cover:
- (a) all direct and indirect costs relating to the supervision of benchmark administrators by ESMA in accordance with Regulation (EU) 2016/1011, including costs resulting from the recognition, endorsement, registration, authorisation or extension of authorisation;
- (b) all costs for the reimbursement of direct and indirect costs of competent authorities to which ESMA has delegated tasks in accordance with Regulation (EU) 2016/1011.
Article 3
Application fees
A benchmark administrator established in a third country that applies for recognition pursuant to Article 32 of Regulation (EU) 2016/1011 shall pay an application fee of EUR 40 000 .
1a. A benchmark administrator that applies for either authorisation and endorsement of third-country benchmarks, or registration and endorsement of third-country benchmarks pursuant to Articles 34 and 33 of Regulation (EU) 2016/1011 shall pay an application fee of EUR 40 000 . A benchmark administrator already registered or authorised by a national competent authority that applies for endorsement of third-country benchmarks in accordance with Article 33 of Regulation (EU) 2016/1011 shall pay an application fee of EUR 20 000 .
1b. By way of derogation from subparagraphs 1 and 1a, where none of the benchmarks it provides or endorses qualify as significant benchmarks pursuant to Article 24 of Regulation (EU) 2016/1011, a benchmark administrator that applies for recognition pursuant to Article 32 of that regulation or for authorisation and endorsement of third-country benchmarks or for registration and endorsement of third-country benchmarks pursuant to Articles 34 and 33 of that regulation shall pay an application fee of EUR 20 000 .
The administrator of a critical benchmark that applies for authorisation in accordance with article 34 of Regulation (EU) 2016/1011 shall pay an application fee of EUR 250 000 .
Application fees shall be due at the time of the submission of the application, and shall be paid in full within 30 days of the issuance of ESMA’s debit note.
In the case of the applications received by national competent authorities after 1 October 2021 and transferred to ESMA, the recognition fees shall be paid at the beginning of 2022.
4a. In the case of applications received by national competent authorities after 1 October 2025 and transferred to ESMA, the relevant application fees shall be paid at the beginning of 2026.
Application fees shall not be reimbursed.
Article 4
Annual supervisory fees
The administrator of one or more critical benchmarks shall pay an annual supervisory fee:
- (a) of EUR 300 000 , in cases where ESMA chairs a college of supervisors pursuant to Article 46 of Regulation (EU) 2016/1011;
- (b) of EUR 250 000 , in cases where ESMA does not chair a college of supervisors pursuant to Article 46 of Regulation (EU) 2016/1011.
A benchmark administrator established in a third country recognised by ESMA or an administrator endorsing third-country benchmarks supervised by ESMA that provides or endorses, on 30 September of year (n-1), at least one benchmark that is significant pursuant to Article 24 of Regulation (EU) 2016/1011 shall pay the following annual supervisory fee:
- (a) for the year of registration, authorisation or recognition and the two years thereafter, EUR 150 000 ;
- (b) as from the third year after the year of registration, authorisation or recognition, the annual supervisory fee for a given year (n) shall be the total annual fee for recognised third-country administrators and administrators endorsing third-country benchmarks that provide or endorse, on 30 September of year (n–1), at least one benchmark that is significant pursuant to Article 24 of Regulation (EU) 2016/1011, adjusted by the turnover coefficient;
- (c) for the purpose of point (b), the total annual fee for recognised third-country administrators and administrators endorsing third-country benchmarks that provide or endorse, on 30 September of year (n–1), at least one benchmark that is significant pursuant to Article 24 of Regulation (EU) 2016/1011 for a given year (n) shall be equal to the ESMA supervisory budget allocated for the performance of the tasks granted under Regulation (EU) 2016/1011 for that year (n) minus the annual supervisory fees to be paid to ESMA by critical benchmark administrators for year (n) and the annual fees for year (n) to be paid to ESMA by administrators paying a fixed fee in accordance with paragraph 3;
- (d) for the purpose of point (b), for each recognised third-country administrator and each administrator endorsing third-country benchmarks that provides or endorses, on 30 September of year (n–1), at least one benchmark that is significant pursuant to Article 24 of Regulation (EU) 2016/1011, the turnover coefficient shall be the share of its applicable turnover in the aggregate applicable turnover generated by all recognised third-country administrators and all administrators endorsing third-country benchmarks that provide or endorse, on 30 September of year (n–1), at least one benchmark that is significant pursuant to Article 24 of Regulation (EU) 2016/1011;
- (e) the minimum annual supervisory fee for recognised third-country administrators and benchmark administrators endorsing third-country benchmarks, where such administrators provide or endorse, on 30 September of year (n–1), at least one benchmark that is significant pursuant to Article 24 of Regulation (EU) 2016/1011, shall be EUR 40 000 , including when the applicable turnover of the recognised third-country administrator or the administrator endorsing third-country benchmarks is equal to zero.
A benchmark administrator established in a third country recognised by ESMA or an administrator endorsing third-country benchmarks supervised by ESMA that provides or endorses, on 30 September of year (n-1), no benchmarks that are significant pursuant to Article 24 of Regulation (EU) 2016/1011, shall pay an annual supervisory fee of EUR 20 000 .
Benchmark administrators shall pay their relevant annual supervisory fees to ESMA at the latest on 31 March of the calendar year in which they are due. Where information for the previous calendar years is not available, the fees shall be calculated on the basis of the latest available information for annual fees. ESMA shall send the debit note to the benchmark administrator at least 30 days before the payment is due. The annual fees paid shall not be reimbursed.
Article 5
Annual supervisory fees in year of recognition, endorsement or authorisation
By way of derogation from Article 4, the annual supervisory fee in the first year for recognised third-country administrators, administrators endorsing third-country benchmarks, and for authorised critical benchmark administrators, with reference to the year in which they have been recognised or authorised, or third-country benchmarks were first endorsed, shall be calculated by applying to the fee specified in Article 4 the following coefficient:
Image omitted; see official source
The supervisory fee of the first year shall be paid after ESMA has notified the benchmark administrator that its application has been successful and within 30 days from the date of issuance of ESMA’s debit note.
By way of derogation from the first subparagraph, where a benchmark administrator is recognised, authorised, or starts endorsing third-country benchmarks during the month of December, it shall not pay a first-year supervisory fee.
Article 6
Applicable turnover
The applicable turnover of a recognised third-country benchmark administrator for a given year (n) shall be its revenues generated in year (n–2) in relation to the use by supervised entities in the Union of its significant benchmarks, Paris-aligned Benchmarks, Climate Transition Benchmarks, or commodity benchmarks that are subject to Annex II to Regulation (EU) 2016/1011, irrespective of whether those revenues are accrued to that recognised third-country benchmark administrator or any other entity belonging to the same group as that administrator.
The applicable turnover of an administrator endorsing third-country benchmarks for a given year (n) shall be its revenues generated in year (n–2) in relation to the use by supervised entities in the Union of the critical benchmarks, significant benchmarks, Paris-aligned Benchmarks, Climate Transition Benchmarks, or commodity benchmarks that are subject to Annex II to Regulation (EU) 2016/1011 it provides or endorses, irrespective of whether those revenues are accrued to that administrator endorsing third-country benchmarks or any other entity belonging to the same group as that administrator.
A recognised third-country benchmark administrator providing at least one significant benchmark shall provide ESMA, on an annual basis, with figures confirming its applicable turnover as referred to in paragraph 1. Where the applicable turnover is not stated in audited annual accounts, the figures submitted shall be audited separately. Those figures shall be submitted to ESMA by electronic means by 30 September each year (n–1), starting in the second year after the year of recognition. A recognised third-country benchmark administrator shall provide the documents containing revenue figures in a language customary to financial services.
An administrator endorsing third-country benchmarks and that provides or endorses at least one significant benchmark shall provide ESMA, on an annual basis, with figures confirming its applicable turnover as referred to in paragraph 2. Where the applicable turnover is not stated in audited annual accounts, the figures submitted shall be audited separately. Those figures shall be submitted to ESMA by electronic means by 30 September each year (n-1), starting in the second year after the year of endorsement. An administrator endorsing third-country benchmarks shall provide the documents containing revenue figures in a language customary to financial services.
Where the recognised third-country benchmark administrator did not operate during the full year (n–2), ESMA shall estimate the applicable turnover by extrapolating, for the recognised third-country benchmark administrator, the value calculated for the number of months during which the recognised third-country benchmark administrator operated in year (n–2) to the whole year (n–2).
Where the administrator endorsing third-country benchmarks did not operate during the full year (n–2), ESMA shall estimate the applicable turnover by extrapolating, for that administrator endorsing third-country benchmarks, the value calculated for the number of months during which that administrator endorsing third-country benchmarks operated in year (n–2) to the whole year (n–2).
Where no audited figures for year (n–2) are available, ESMA shall use the audited figures of year (n–1).
ESMA shall convert revenues reported in a currency other than the euro into euro using the average euro foreign exchange rate applicable to the period during which those revenues were recorded. For that purpose, ESMA shall use the euro foreign exchange reference rate published by the European Central Bank.
Article 7
General payment modalities
All fees shall be payable in euro.
Any late payments shall incur the default interest laid down in Article 99 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council ([^E0001]).
Article 10
Reimbursement of national competent authorities
In case of a delegation of tasks by ESMA to national competent authorities, only ESMA shall charge the application fee and the fee for the annual supervision of third-country administrators, administrators endorsing third-country benchmarks and administrators of critical benchmarks.
ESMA shall reimburse a national competent authority for the actual costs incurred as a result of work carried pursuant to Regulation (EU) 2016/1011, with an amount which fulfils the following conditions:
- (a) the amount is agreed by ESMA and the competent authority before the delegation of tasks takes place;
- (b) the amount is lower than the total amount of supervisory fees paid to ESMA by the relevant administrators of benchmarks.
Article 11
Transitional provisions
Article 3 shall not apply to administrators of critical benchmarks and of third country benchmarks already authorised or recognised by national competent authorities prior to the entry into force of this regulation.
1a. Article 3 shall not apply to benchmark administrators endorsing third-country benchmarks authorised or registered by national competent authorities on or before 31 December 2025.
In derogation of Article 12(1), in case this Regulation enters into force after the third month of 2022, the annual supervisory fees over 2022 applicable to administrators of benchmarks under ESMA supervision shall be due within 30 days from the date of issuance of ESMA’s invoice.
For the purposes of the calculation in Article 4(2) of the annual supervisory fees applicable to benchmark administrators under ESMA supervision for the year 2022 the applicable turnover shall, in derogation of Article 4(2)(a)-(d), be provisionally based on revenue generated in 2021. When the audited accounts over 2021 become available the benchmark administrators shall submit them to ESMA without delay. ESMA will recalculate the annual supervisory fees over the year 2021 based on the audited accounts and will submit a final invoice, for the difference, to each benchmark administrator.
By derogation from Article 4, a benchmark administrator established in a third country recognised by ESMA on 1 January 2026 or an administrator endorsing third-country benchmarks supervised by ESMA on 1 January 2026 that provides or endorses at least one benchmark that is significant pursuant to Article 24 of Regulation (EU) 2016/1011 shall pay a fixed annual supervision fee of EUR 150 000 for the years 2026 and 2027. From 2028 onwards, the calculation in Article 4, second paragraph, point (b) applies.
By derogation from Article 6, such administrator shall not be required to submit revenue figures in 2025 and 2026.
Article 12
Entry into force and date of application
This Regulation shall enter into force and apply on the third 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 Member States.
[^E0001]: Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1, ELI: http://data.europa.eu/eli/reg/2018/1046/oj).
Reading this document does not replace reading the official text published in the Official Journal of the European Union. We assume no responsibility for any inaccuracies arising from the conversion of the original to this format.
This text is published under EUR-Lex's own terms of reuse, not a Legalize or public-domain licence.
EUR-Lex
Creative Commons Attribution 4.0 International (CC BY 4.0)
© European Union, https://eur-lex.europa.eu — Source: EUR-Lex (Publications Office of the European Union). Reused under the Creative Commons Attribution 4.0 International (CC BY 4.0) licence. Only EU legislation published in the printed Official Journal of the European Union is deemed authentic; consolidated texts are reproduced here for documentation purposes and have been reformatted to Markdown.