BAKGRUNN (fra kommisjonsfoordningen)

(1) Commission Delegated Regulation (EU) No 1003/2013 specifies the type of fees, the calculation, and the payment modalities with regard to the fees charged by the European Securities and Markets Authority (ESMA) to trade repositories. 

(2) In 2018, both the Commission’s Internal Audit Service’s review and the European Court of Auditors’ audit concluded that ESMA’s fee funding system is unnecessarily complex. To simplify the fee collection and reduce risks linked to the incorrect calculation or inefficient allocation of fees, it is necessary to ensure consistency of technical aspects across the different delegated acts on fees charged by ESMA, where appropriate and possible. 

(3) To ensure consistency with respect to the fees charged by ESMA to trade repositories, Delegated Regulation (EU) No 1003/2013 should be aligned to Commission Delegated Regulation (EU) 2019/360. 

(4) To fully cover ESMA’s expenditures relating to the supervision of trade repositories, the annual supervisory fees should be determined on the basis of the annual estimate of all direct costs necessary for the supervisory tasks performed by ESMA and a reasonable apportionment of ESMA’s fixed and variable overheads.

(5) To ensure consistency and comparability of data across trade repositories when determining ESMA’s supervisory fees, the annual supervisory fees should be calculated only based on the turnover generated by a trade repository's core activities and its ancillary services. 

(6) To ensure consistency among delegated acts on fees to be paid to ESMA, and to enable ESMA to receive in due time audited turnover data for the estimation of fees due by trade repositories to ESMA, the reference year of the audited accounts for the determination of the applicable turnover should be 2 years prior to the year for which ESMA charges fees to the trade repository. 

(7) The applicable turnover of trade repositories is calculated in euros. It is therefore necessary to specify a mechanism for the conversion into euros of revenues generated in other currencies. 

(8) In line with Commission Delegated Regulation (EU) 2019/7155 , fees charged to trade repositories should be set at a level that ensures that the full cost of services provided by ESMA is covered and a deficit is avoided, but at the same time avoids the accumulation of a significant surplus. Where a significant positive or negative budget result becomes recurrent, the level of the fees should be revised. 

(9) To avoid an excessive supervisory fee in the year of its registration, a registered trade repository should pay an initial supervisory fee the amount of which should be proportional to the period of time in that first year during which the trade repository has been registered. 

(10) Where a trade repository that has not yet been registered under Regulation (EU) No 648/2012 simultaneously submits applications for registration under both Regulation (EU) No 648/2012 and Regulation (EU) 2015/236 of the European Parliament and the Council, the expenditure necessary to accurately assess and examine the applications should be lower because of the synergies of reviewing the same type of documents. In the case of simultaneous applications, the trade repository should thus pay the full registration fee due under Regulation (EU) No 648/2012, and the reduced fee for extension of registration due under Regulation (EU) 2015/2365. 

(11) The administrative cost linked to the first year supervisory fee for a trade repository registered in December, is not proportionate to that fee. Therefore, a trade repository that is registered in December should be exempted from the requirement to pay an annual supervisory fee for the year in which that trade repository was registered. 

(12) To ensure consistency among delegated acts on fees to be paid to ESMA, ESMA should calculate the penalty in case of late payments in line with the provisions on default interest set out in Article 99 of the of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council.

(13) To enhance transparency with respect to the terms and processes of payment of fees for trade repositories, it is necessary to determine within which period of time, or at which date, trade repositories are to pay an ESMA invoice on fees. For the annual supervisory fees, it is necessary to specify the amount and the latest date on which ESMA is to send the relevant invoice to trade repositories. 

(14) To ensure the timely payment of registration fees and recognition fees, those fees should in any case be paid within 30 calendar days from the date of issuance of ESMA’s invoice. 

(15) To further simplify the fee payment flows, and to ensure ESMA has the necessary funds to carry out its planned supervisory activities, annual supervisory fees should be paid in a single instalment during the first 3 months of the calendar year for which such fees are due. 

(16) To provide sufficient time and facilitate internal approval processes, ESMA should send invoices for the payments of annual supervisory fees at least 30 calendar days before the relevant payment date. 

(17) In order to avoid legal uncertainty for the ongoing fee collection process, this Regulation should apply from 1 January 2025. 

(18) Delegated Regulation (EU) No 1003/2013 should therefore be amended accordingly,