(fra kommisjonsforordningen)

(1) Commission Delegated Regulation (EU) 2022/9308 specifies fees relating to the supervision by the European Securities and Markets Authority (‘ESMA’) of data reporting services providers (‘DRSPs’). The scope of that Delegated Regulation was limited to approved publication arrangements (‘APAs’) and approved reporting mechanisms (‘ARMs’) subject to ESMA supervision. The scope of that Delegated Regulation did not cover other DRSPs subject to ESMA supervision, including consolidated tape providers (‘CTPs’). That limited scope was due to the absence of DRSPs providing consolidated tape services in the Union and to the pending review of Regulation (EU) No 600/2014, which was amended by Regulation (EU) 2024/791 of the European Parliament and of the Council9 (‘MiFIR reform’). The MiFIR reform entered into force on 28 March 2024. 

(2) The MiFIR reform removed obstacles to the emergence of CTPs in the Union and set a timeline for ESMA’s selection and authorisation of a CTP for bonds, a CTP for shares and exchange-traded funds, and a CTP for over-the-counter derivatives (‘OTC derivatives’). In light of the upcoming CTP authorisation process, it is necessary to amend the scope of Commission Delegated Regulation (EU) 2022/930 to ensure it covers all DRSPs subject to ESMA supervision, including CTPs. 

(3) Supervisory fees for CTPs should consist of a fixed authorisation fee and of an annual supervisory fee to cover all the costs associated with the tasks related to their authorisation and ongoing supervision. CTPs are authorised only once they have been selected in a competitive selection procedure, organised by ESMA in accordance with Articles 27da and 27db of Regulation (EU) No 600/2014. In consequence, when CTPs apply for authorisation, they will have already established a relationship with ESMA and therefore they should not be charged a separate application fee. 

(4) The annual supervisory fee charged by ESMA to CTPs should, as a general rule, cover all activities carried out in connection with their supervision. For that purpose, each year, ESMA should assess the direct and indirect supervisory costs in relation to CTPs, including the cost for ESMA’s staff that is directly allocated to supervisory tasks and the cost of horizontal services, such as the cost for the operational and administrative support provided to staff that is directly involved in supervisory tasks. Such assessment should enable ESMA to charge each individual CTP a fee that covers those costs and is proportionate to its revenue compared to the total revenue of all CTPs. A CTP’s revenue that is related to activities that are directly ancillary to core services should be included in the calculation of the applicable turnover if it is likely to have an impact on ESMA supervision of that CTP and is not already covered by separate supervision activities. To match ESMA’s estimated supervisory costs, the annual supervisory fees should be adjusted every year. Fees for ESMA’s supervisory activities carried out in connection with CTPs should be set at a level such as to avoid a deficit or a significant accumulation of a surplus. Where there is a recurrent deficit or surplus, the level of fees should be revised. 

(5) Article 3(2) of Commission Delegated Regulation (EU) 2022/930 requires that the annual supervisory fee for a given DRSP in a given year (n) is to be determined based on its applicable turnover. That applicable turnover is to be calculated in accordance with Article 4 of that Delegated Regulation, which requires that, as a rule, the applicable turnover is to be calculated on the basis of the audited accounts of that DRSP for year (n-2). For CTPs that will start providing services for the first time, there will be no reliable applicable turnover data for the calculation of the annual supervisory fee in the first two years of operation. A special regime based on a fixed annual supervisory fee is therefore required for that period. To prevent the creation of barriers to market entry and to ensure proportionality, while reflecting an estimate of the expenditure necessary to perform the supervisory tasks related to CTPs, that fixed fee should be set at EUR 400 000. In the first year of operation, that fee should be applied on a pro rata basis. 

(6) A distinction should be made between CTPs that start their operations in the first half of the year and CTPs that start their operations in the second half of the year. For CTPs that start operations in the first half of the year, in that year of operation, the annual supervisory fee should be determined based on a pro rata application of the fixed annual supervisory fee. In the second year, those CTPs should pay the full amount of the fixed annual supervisory fee. As of the third year, those CTPs should no longer be subject to the special regime and thus pay the normal annual supervisory fee. For CTPs that start operations in the second half of the year, in that year of operation, the annual supervisory fee should be determined based on a pro rata application of the fixed annual supervisory fee. In the second and third years, those CTPs should pay the full amount of the fixed annual supervisory fee. It is necessary to extend the special regime for those CTPs to the third year given that they are likely to operate for only a very limited period in the first year. As of the fourth year, those CTPs should no longer be subject to the special regime and thus pay the normal annual supervisory fee. 

(7) For the period between the date of authorisation of a CTP and the date when that CTP becomes operational, where those dates are different, a CTP should pay a supervisory fee based on a pro rata application of the fixed authorisation fee to cover the costs incurred by ESMA to (i) supervise the CTP’s preparatory activities during that period, in particular to ensure that appropriate contractual arrangements and effective digital interfaces are put in place with data contributors, (ii) to monitor and steer the CTP’s timely implementation of the relevant data ingestion and data availability functionalities, (iii) to assess the CTP’s technical readiness, and (iv) to monitor the onboarding of all parties concerned and their data. 

(8) The special regime based on a fixed annual supervisory fee should not apply to CTPs that already offer CTP services for the same asset class and that are selected for that asset class for further five years. 

(9) Where at least one CTP is subject to the special regime based on a fixed annual supervisory fee and at least one other CTP is no longer subject to that special regime, the methodology for calculating annual supervisory fees based on the applicable turnover cannot be used. It is therefore necessary to lay down a methodology to determine the annual supervisory fee for each of the CTPs that is no longer under that special regime, which should take into consideration only the estimated expenditure arising from supervisory activities for those CTPs and their applicable turnover. 

(10) To ensure that the applicable turnover of DRSPs is calculated in a harmonised manner, ESMA should convert revenues of DRSPs that are expressed in a currency other than the euro into euro. For that purpose, ESMA should use the official reference rate as published by the European Central Bank. 

(11) For cases where a given APA or ARM becomes subject to ESMA supervision following the reassessment referred to in Article 1(3) of Commission Delegated Regulation (EU) 2022/46610 , it is necessary to specify the methodology to be used to calculate the annual supervisory fee for the year in which the APA or ARM becomes subject to ESMA supervision. 

(12) Commission Delegated Regulation (EU) 2022/930 should therefore be amended accordingly,