Commission Delegated Regulation (EU) 2022/930 of 10 March 2022 supplementing Regulation (EU) No 600/2014 of the European Parliament and of the Council by specifying fees relating to the supervision by the European Securities Markets Authority of data reporting service providers

Article 1

Scope

This Delegated Regulation shall apply to ‘data reporting services providers’ (or ‘DRSPs’), as defined in Article 2(1), point (36a), of Regulation (EU) No 600/2014, that are subject to ESMA supervision.

Article 1a

Recovery of supervisory costs in full

The fees charged to DRSPs shall cover:

(a) all direct and indirect costs relating to the authorisation and supervision of DRSPs by ESMA in accordance with Regulation (EU) No 600/2014;

(b) all costs for the reimbursement of competent authorities that have carried out work pursuant to Regulation (EU) No 600/2014, in particular as a result of any delegation of tasks in accordance with Article 38o of that Regulation.

Article 2

Application and authorisation fees

Where a DRSP applies for authorisation to provide data reporting services it shall pay:

(a) for APAs and ARMs an application fee of EUR 20 000 for the first application and EUR 10 000 for each following application for authorisation of additional data reporting services;

(b) for APAs and ARMs an authorisation fee of EUR 80 000 for the first authorisation and EUR 40 000 for each following authorisation of additional data reporting services;

(c) for CTPs an authorisation fee of EUR 100 000 for the first authorisation and EUR 50 000 for each following authorisation of additional data reporting services.

Article 3

Annual supervisory fees for APAs and ARMs

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.

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.

DRSP first-year fee = Authorisation fee × Coefficient

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

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.

Article 3a

Annual supervisory fees for CTPs

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.

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.

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

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

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.

Article 4

Applicable turnover

DRSPs shall keep audited accounts for the purposes of this Regulation which distinguish between at least the following:

(a) revenues generated from ARM services;

(b) revenues generated from APA services;

(c) revenues generated from ancillary services to ARM activities;

(d) revenues generated from ancillary services to APA activities;

(e) revenues generated from CTP services;

(f) revenues generated from ancillary services to CTP services.

The applicable turnover of a DRSP for a given year (n) shall be the sum of:

(a) its revenues generated from the core functions of the provision of ARM, APA or CTP services on the basis of the audited accounts of the year (n-2), or, where those audited accounts are not yet available of the year prior to that (n-3) and

(b) its applicable revenues from ancillary services on the basis of audited accounts of the year (n-2), or, where those audited accounts are not yet available of the year prior to that (n-3),

divided by the sum of:

(c) the total revenues of all authorised ARMs, APAs or CTPs generated from core functions of provision of ARM, APA or CTP services on the basis of the audited account during the year (n-2), or, where those audited accounts are not yet available of the year prior to that (n-3) and

(d) the total applicable revenues from ancillary services of all ARMs, APAs or CTPs on the basis of audited accounts during the year (n-2), or, where those audited accounts are not yet available of the year prior to that (n-3).

For that purpose, ESMA shall use the euro foreign exchange reference rate published by the European Central Bank.

Article 5

General payment modalities

Article 6

Payment of application and authorisation fees

Article 7

Payment of annual supervisory fees

Article 8

Reimbursement of national competent authorities

ESMA shall ensure that the costs to be reimbursed to national competent authorities fulfil the following conditions:

(a) they should be previously agreed between ESMA and the NCA;

(b) they should be proportionate to the turnover of the relevant DRSP; and

(c) they should not be greater than the total amount of supervisory fees paid by the relevant DRSP.

Article 9

Transitional provision for 2022

For the purposes of the calculation of the annual supervisory fee applicable to DRSPs under ESMA supervision for the year 2022, ESMA shall collect a fixed fee, based on the following calculations:

(a) EUR 350 000 for APAs that published transactions which accounted for more than 10 % of the total number of published transactions of all authorised APAs, either for equity or non-equity instruments, in the first 6 months of 2021, as reported by the competent authority concerned;

(b) EUR 50 000 for APAs that published transactions which accounted for less than 10 % of the total number of published transactions of all authorised APAs, either for equity or non-equity instruments, in the first 6 months of 2021, as reported by the competent authority concerned;

(c) EUR 650 000 for ARMs that submitted transaction reports to the relevant competent authority which accounted for more than 10 % of the total number of transaction reports submitted to competent authorities by all authorised ARMs in the first 6 months of 2021, as reported by the competent authority concerned;

(d) EUR 50 000 for ARMs that submitted transaction reports to the relevant competent authority which accounted for less than 10 % of the total number of transaction reports submitted to competent authorities by all authorised ARMs in the first 6 months of 2021, as reported by the competent authority concerned.

Article 10

Transitional provision for 2023

For the purposes of paragraph 1, the applicable turnover of a DRSP shall be the sum of:

(a) the DRSP’s revenues generated from the core functions of the provision of ARM or APA services in the first 6 months of 2022 and

(b) the DRSP’s revenues generated from ancillary services to ARM or APA activities in the first 6 months of 2022, divided by the sum of:

(c) the total revenues of all authorised ARMs or APAs generated from core functions of provision of ARM or APA services in the first 6 months of 2022 and

(d) the total revenues generated from ancillary services to ARM or APA activities of all ARMs or APAs in the first 6 months of 2022.

DRSPs shall, by 30 September 2022, inform ESMA about the amount of revenues generated from the core functions of the provision of ARM or APA services in the first 6 months of 2022 and about the amount of the revenues from ancillary services to ARM or APA activities in the first 6 months of 2022.

When the information referred to in paragraph 3 is available for all DRSPs, ESMA shall provide the DRSPs a second invoice specifying the final amount of the supervisory fee for 2023 based on the calculation referred to in paragraph 4. ESMA shall provide the DRSPs that invoice at the latest thirty days before the final payment date.

Article 11

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.