(fra kommisjonsforordningen)

(1) Directive (EU) 2024/790 of the European Parliament and of the Council (2) amended the definition of ‘systematic internaliser’ laid down in Article 4(1), point (20), of Directive 2014/65/EU of the European Parliament and the Council (3). That amendment replaced the quantitative criteria to determine what constitutes a frequent, systematic and substantial basis with a qualitative assessment and limited that assessment to equity instruments only, while leaving the possibility for an investment firm to choose to opt in to become a systematic internaliser for non-equity instruments. It is therefore necessary to delete from Commission Delegated Regulation (EU) 2017/577 (4) the obligation for trading venues, approved publication arrangements (APAs) and consolidated tape providers (CTPs) to provide their competent authorities with the data required to perform the calculations set out in Articles 12 to 15 of Commission Delegated Regulation (EU) 2017/565 (5) that were used to assess whether the relevant quantitative criteria were met.

(2) For the purposes of transparency and other calculations, data are currently reported using the XML format. To reflect the current supervisory practice, Delegated Regulation (EU) 2017/577 should be amended to specify that the XML format should be used for data that are reported for carrying out calculations that occur at pre-set dates or in pre-defined frequencies.

(3) The European Securities and Markets Authority (ESMA) and competent authorities may need to request data on an ad-hoc basis from trading venues, APAs and CTPs as part of their assessment of the pre-trade and post-trade transparency and the trading obligation regimes. To allow for efficient data delivery and for consolidation with similar data from other sources, ESMA and competent authorities should, in the case of ad-hoc data requests, be able to specify the format in which the data should be submitted. To minimise burden for market participants, ESMA and competent authorities should rely as much as possible on existing datasets, including transaction data reported in accordance with Article 26 of Regulation (EU) No 600/2014, and resort to ad-hoc data requests only where necessary.

(4) Regulation (EU) 2024/791 of the European Parliament and of the Council (6) amended Regulation (EU) No 600/2014 by extending to five years the obligation for operators of trading venues, APAs and CTPs to maintain records. That amendment should be reflected in Delegated Regulation (EU) 2017/577.

(5) ESMA has assessed whether transaction data reported in accordance with Article 26 of Regulation (EU) No 600/2014 can be used to calculate the total volume of trading in a financial instrument in the Union and the percentage of trading in a financial instrument in the Union carried out under the reference price waiver as referred to in Article 5 of that Regulation. Considering the positive results of that assessment and the need to reduce reporting burden for market participants, ESMA announced that transaction data reported in accordance with Article 26 of Regulation (EU) No 600/2014 will be used to provide an accurate measurement of the total volume of trading per financial instrument and the percentages of trading under the reference price waiver across the Union as referred to in Article 5 of that Regulation. Article 6 of Delegated Regulation (EU) 2017/577 on the reporting requirements for trading venues and CTPs for the purpose of the volume cap mechanism, as well as the requirements for competent authorities to report to ESMA for the purposes of the volume cap mechanism set out in Article 7, should therefore be deleted. The Annex to Delegated Regulation (EU) 2017/577, which sets out the formats of the report for the purpose of the volume cap mechanism, should also be deleted.

(6) Article 7 of Delegated Regulation (EU) 2017/577 requires competent authorities to provide ESMA with the data that they received from a trading venue, APA or CTP for the purpose of the trading obligation for derivatives. To reflect the current supervisory practice, whereby trading venues, APAs and CTPs submit the data directly to ESMA, direct reporting of data to ESMA should be required instead.

(7) Article 5 of Regulation (EU) No 600/2014 on the volume cap was amended by Regulation (EU) 2024/791 by replacing the double volume cap with a single Union-wide volume cap set at 7 %. Regulation (EU) 2024/791 also removed from the scope of the transactions subject to the volume cap the transactions carried out under the waiver referred to in Article 4(1), point (b)(i), of Regulation (EU) No 600/2014 (negotiated trade waiver for liquid instruments), and allowed trading venues to suspend the use of the waiver referred to in Article 4(1), point (a), of that Regulation (reference price waiver) based on the trading data published by ESMA on a quarterly basis. In addition, Directive (EU) 2019/1024 of the European Parliament and of the Council (7) introduced a harmonised definition of ‘machine-readable format’ applicable to public sector bodies. Article 8 of Delegated Regulation (EU) 2017/577 on the publication requirements for ESMA for the purposes of the volume cap should therefore be amended to reflect those changes.

(8) Delegated Regulation (EU) 2017/577 should therefore be amended accordingly.

(9) This Regulation is based on the draft regulatory technical standards submitted to the Commission by ESMA.

(10) ESMA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council (8),