Commission Delegated Regulation (EU) 2022/805 of 16 February 2022 supplementing Regulation (EU) 2016/1011

This Regulation lays down rules on fees that ESMA can charge to benchmark administrators in relation to authorisation, recognition and supervision.

For the purpose of this Regulation, the following definitions applies:

(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.

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, 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.

1. A benchmark administrator established in a third country that applies for recognition pursuant to article 32 of Regulation (EU) 2016/1011 shall pay a recognition fee of EUR 40 000 .

2. 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 .

3. The authorisation fee and the recognition fee shall be paid at the time of the submission of the application, upon receipt of ESMA’s debit note.

4. 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.

5. Recognition fees and authorisation fees shall not be reimbursed.

1. The administrator of one or more critical benchmarks shall pay an annual supervisory fee:(a) of EUR 250 000 , in cases where ESMA has to chair a college of supervisors pursuant to article 46 of Regulation (EU) 2016/1011;(b) of EUR 200 000 , in cases where ESMA does not have to chair a college of supervisors pursuant to article 46 of Regulation (EU) 2016/1011.

2. A benchmark administrator established in a third country recognised by ESMA shall pay an annual supervisory fee calculated as follows:(a) the annual supervisory fee for a given year (n) shall be the total annual fee for recognised third country administrators adjusted by the turnover coefficient;(b) the total annual fee for recognised third country administrators for a given year (n) shall be equal to the ESMA supervisory budget for Regulation (EU) 2016/1011 for that year (n) minus the annual supervisory fees to be paid to ESMA by critical benchmark administrators for the year (n);(c) for each third country administrator, the turnover coefficient shall be its share of the applicable turnover in the aggregate turnover generated by all recognised third country administrators(d) the minimum annual supervisory fee for recognised third country administrators shall be EUR 20 000 , including when the applicable turnover of the recognised third country administrator is equal to zero.

3. 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. If information for the previous calendar years are not available, the fees shall be calculated on the basis of the latest available information for annual fees. The annual fees paid are not reimbursed.

By way of derogation from Article 4, the annual supervisory fee in the first year for recognised third-country administrators and for authorised critical benchmark administrators, with reference to the year in which they have been recognised or authorised, shall be calculated by applying to the fee for recognition or authorisation, as applicable, the following coefficient:

The supervisory fee of the first year shall be paid after the administrator has been notified by ESMA that its application has been successful and within 30 days from the date of issuance of ESMA’s relevant debit note.

By way of derogation, where a benchmark administrator is authorised during the month of December, it shall not pay first-year supervisory fee.

1. The applicable turnover of a recognised third-country benchmark administrator for a given year n shall be its revenues accrued in relation to the use of its benchmarks by supervised entities in the Union as stated in the audited accounts of year n-2.

2. A recognised third-country benchmark administrator shall provide ESMA, on an annual basis, with audited figures confirming its revenues accrued in relation to the use of its benchmarks in the Union. The figures shall be certified by an external audit and shall be submitted to ESMA by electronic means by 30 September each year (n-1). A third-country administrator that is recognised after 30 September shall provide the figures immediately upon recognition and by end of the calendar year of recognition. A recognised third-country benchmark administrator shall provide the documents containing audited figures in a language customary to financial services.

3. 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).

4. Where no audited accounts for year (n–2) are available, ESMA shall use the audited accounts of year (n–1).

5. Where the revenues reported are expressed in a currency other than the euro, ESMA shall convert those revenues 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.

1. All fees shall be payable in euro.

2. 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 (1).

1. The fees for application, authorisation or extension of authorisation shall be due at the time the benchmark administrator applies and shall be paid in full within 30 days from the date of issuance of ESMA’s invoice.

2. ESMA shall not reimburse fees to a benchmark administrator that decides to withdraw its application for authorisation.

1. The annual supervisory fee referred to in Article 4 for a financial year shall be paid to ESMA before 31 March of the calendar year for which they are due. The fees shall be calculated on the basis of the latest available information for annual fees.

2. ESMA shall not reimburse annual supervisory fees.

3. ESMA shall send the invoice to the benchmark administrator at least 30 days before the payment is due.

1. In case of a delegation of tasks by ESMA to national competent authorities, only ESMA shall charge the recognition fee and the annual supervisory fees for third country administrators and administrators of critical benchmarks.

2. 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.

1. 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.

2. 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.

3. 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.

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.