Commission Delegated Regulation (EU) 2026/323 of 29 October 2025 amending Delegated Regulation (EU) 2022/805 as regards fees for the supervision by the European Securities and Markets Authority of benchmark administrators endorsing third-country benchmarks

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (1), and in particular Article 48l(3) thereof,

Whereas:

(1) Article 40(1) of Regulation (EU) 2016/1011 was amended by Regulation (EU) 2025/914 of the European Parliament and of the Council (2) to transfer from the national competent authorities to ESMA the competences in relation to the authorisation or registration of benchmark administrators that endorse third-country benchmarks. Pursuant to Article 48l of Regulation (EU) 2016/1011, ESMA is to charge supervisory fees for all benchmark administrators referred to in Article 40(1) of that Regulation. Those include benchmark administrators that endorse third-country benchmarks. It follows that fees should be laid down for the initial registration or authorisation as well as for the ongoing supervision of those benchmark administrators.

(2) The level of supervisory fees should not be a factor for a third-country benchmark administrator in deciding whether to offer its benchmarks in the Union by way of either recognition or endorsement. It follows that the level of supervisory fees for benchmark administrators that endorse third-country benchmarks should be the same as for recognised third-country administrators.

(3) Article 4(1) of Delegated Regulation (EU) 2022/805 (3) specifies the annual supervisory fees for administrators of critical benchmarks. Based on experience gathered by ESMA in the supervision and chairing of a supervisory college for the administrator of a critical benchmark, it has become apparent that those fees are no longer sufficient to cover the operational expenditure for supervision. The fixed supervisory fees for administrators of critical benchmarks should therefore be increased.

(4) To ensure that supervisory fees do not unduly dissuade third-country benchmark administrators from offering their benchmarks in the Union, those fees should be proportionate to the turnover generated by an administrator’s activities in the Union.

(5) ESMA will have to supervise both benchmark administrators that administer or endorse significant benchmarks and benchmark administrators that administer or endorse benchmarks which are of limited economic significance, but which are in the scope of Regulation (EU) 2016/1011 because they are EU Paris-aligned Benchmarks, EU Climate Transition Benchmarks or commodity benchmarks subject to Annex II to Regulation (EU) 2016/1011. To ensure proportionality between the economic relevance of the benchmarks that are not significant benchmarks and the annual supervisory fee to be paid, and to limit reporting burden on the benchmark administrators concerned, the annual supervisory fees for those benchmark administrators should take the form of a fixed amount and the benchmark administrators administering or endorsing them should not be obliged to submit revenue figures to ESMA.

(6) The turnover upon which the supervisory fee for the subsequent years can be based will normally not be available for benchmark administrators that have only recently established their business in the Union. For that reason, it is appropriate to lay down a fixed supervisory fee for the first two years of operation of those benchmark administrators.

(7) Benchmark administrators that endorse third-country benchmarks and the ongoing supervision of which is transferred from national competent authorities to ESMA in accordance with Article 48n(1a) of Regulation (EU) 2016/1011 do not have to re-apply for authorisation and endorsement or for recognition and endorsement. It follows that they should not have to pay application fees following the transfer of supervisory responsibility.

(8) To avoid legal uncertainty for any applications received by ESMA in the period leading up to the end of the transitional period for the use of third-country benchmarks in the Union on 31 December 2025, this Regulation should apply as a matter of urgency.

(9) Delegated Regulation (EU) 2022/805 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Amendments to Delegated Regulation (EU) 2022/805

Delegated Regulation (EU) 2022/805 is amended as follows:

(1) Article 1 is replaced by the following: ‘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.’

(2) in Article 2, the introductory wording is replaced by the following: ‘For the purposes of this Regulation, the following definitions apply:’;

(6) Articles 8 and 9 are deleted;

(7) in Article 10, paragraph 1 is replaced by the following: ‘1.   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.’

Article 2

This Regulation shall enter into force on the 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.

Done at Brussels, 29 October 2025.

For the Commission The President Ursula VON DER LEYEN

(1) OJ L 171, 29.6.2016, p. 1, ELI: http://data.europa.eu/eli/reg/2016/1011/oj.

(2) Regulation (EU) 2025/914 of the European Parliament and of the Council of 7 May 2025 amending Regulation (EU) 2016/1011 as regards the scope of the rules for benchmarks, the use in the Union of benchmarks provided by an administrator located in a third country, and certain reporting requirements (OJ L, 2025/914, 19.5.2025, ELI: http://data.europa.eu/eli/reg/2025/914/oj).

(3) Commission 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 (OJ L 145, 24.5.2022, p. 14, ELI: http://data.europa.eu/eli/reg_del/2022/805/oj).