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

+ ### Article 1 — Subject matter and scope
− ### art_1
− 
− Article 1
− 
− ### art_2
+ ### Article 2 — Definitions
− Article 2
+ (1) ‘critical benchmark’ means a critical benchmark pursuant to article 20(1), points (a) and (c), of Regulation (EU) 2016/1011;
− | (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.
− | (2) | ‘third country benchmark’ means a benchmark whose administrator is located outside the Union. |
− | --- | --- |
+ ### Article 2a — Recovery of supervisory costs in full
− ### art_3
+ The fees charged to benchmark administrators shall cover:
− Article 3
+ (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;
− 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.
+ (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.
− 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.
+ ### Article 3 — Recognition fees and authorisation fees
− 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.
+ **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 .
− 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.
+ **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 .
− 5. Recognition fees and authorisation fees shall not be reimbursed.
+ **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.
− ### art_4
+ **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.
− Article 4
+ **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:
+ ### Article 4 — Annual supervisory fees
− | (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; |
− | --- | --- |
+ **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…
− | (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 coeffici…
− 2. A benchmark administrator established in a third country recognised by ESMA shall pay an annual supervisory fee calculated as follows:
+ **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 informati…
− | (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; |
− | --- | --- |
+ ### Article 5 — Annual supervisory fees in year of recognition or authorisation
− | (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); |
− | --- | --- |
+ 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 …
− | (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 f…
− 
− ### art_5
− 
− Article 5
− 
− By way of derogation from article 4, the 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 reducing the supervisory fee…
− 
+ ### Article 6 — Applicable turnover
− ### art_6
+ **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.
− Article 6
+ **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 electron…
− The turnover of a recognised third country benchmark administrator shall be its revenues accrued in relation to the use of its benchmarks by supervised entities in the Union during the benchmark administrator’s most recently completed financial year.
+ **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 recogni…
− 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 mean…
+ **4.** Where no audited accounts for year (n–2) are available, ESMA shall use the audited accounts of year (n–1).
− If the revenues reported are expressed in a currency other than the euro, ESMA shall convert them into an amount in euro using the average euro foreign exchange rate applicable to the period during which the revenues were recorded. For that purpose, the euro foreign exchange reference rate published…
+ **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 …
− Third country administrators recognised before 1 January 2022 shall provide ESMA with their turnover of 2020 by 31 January 2022.
+ ### Article 7 — General payment modalities
− ### art_7
+ **1.** All fees shall be payable in euro.
− Article 7
+ **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. All fees shall be payable in euro.
+ ### Article 8 — Payment of application and authorisation fees
− 2. Any late payments shall incur a daily penalty equal to 0,1 % of the amount due.
+ **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.
− ### art_8
+ **2.** ESMA shall not reimburse fees to a benchmark administrator that decides to withdraw its application for authorisation.
− Article 8
+ ### Article 9 — Payment of annual supervisory fees
− 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.
+ **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 fees to a benchmark administrator that decides to withdraw its application for authorisation.
+ **2.** ESMA shall not reimburse annual supervisory fees.
− ### art_9
+ **3.** ESMA shall send the invoice to the benchmark administrator at least 30 days before the payment is due.
− Article 9
+ ### Article 10 — Reimbursement of national competent authorities
− 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.
+ **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 not reimburse annual supervisory fees.
− 
− 3. ESMA shall send the invoice to the benchmark administrator at least 30 days before the payment is due.
+ **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 task…
− ### art_10
+ ### Article 11 — Transitional provisions
− Article 10
+ **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.
− 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.** 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.
− 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:
+ **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…
− | (a) | the amount is agreed by ESMA and the competent authority before the delegation of tasks takes place; |
− | --- | --- |
+ ### Article 12 — Entry into force and date of application
− | (b) | the amount is lower than the total amount of supervisory fees paid to ESMA by the relevant administrators of benchmarks. |
− | --- | --- |
+ 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*.
− ### art_11
− 
− Article 11
− 
− 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 aud…
− 
− ### art_12
− 
− Article 12
− 
− 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.