CELEX: 
Language: en
Date: 2021-07-30
Title: COMMISSION DELEGATED REGULATION (EU) …/... supplementing Regulation (EU) No 2016/1011 of the European Parliament and of the Council by specifying fees and rules of procedure for measures applicable to the supervision by the European Securities Markets Authority of certain benchmark administrators

EXPLANATORY MEMORANDUM
            
            
               1.CONTEXT OF THE DELEGATED ACT
            
            
               Regulation (EU) 2019/2175 (the Regulation), amending, among others, Regulation (EU) No 2016/1011 (the ‘Benchmark Regulation’ or ‘BMR’), was published in the Official Journal on 27 December 2019. It grants new supervisory powers to ESMA in relation to benchmark administrators. In particular, the new Article 40(1) of BMR states that, starting on 1 January 2022, ESMA will be the competent authority for:
            
            
               ·administrators of a critical benchmark as referred to in points (a) and (c) of Article 20(1) of BMR; and
            
            
               ·third country administrators of benchmarks as referred to in Article 32 of BMR, i.e. third country administrators under the recognition regime of BMR.
            
            
               Fines
            
            
               Article 48i(10) of BMR, empowers the Commission to adopt a delegated act to further specify the rules of procedure for the exercise of the power to impose fines or periodic penalty payments, including provisions on the rights of the defence, limitation period for the imposition of fines and periodic penalty payments, the collection of fines or periodic penalty payments, and the limitation periods for the imposition and enforcement of fines and periodic penalty payments.
            
            
               Fees
            
            
               Article 48l(1) of BMR requires ESMA to charge fees to administrators of critical benchmarks and of third country benchmarks. Those fees shall fully cover ESMA’s necessary expenditure relating to the supervision of administrators of benchmarks under its competence and has to be proportionate to the turnover of the administrator. Those fees should also cover the reimbursement of any costs that the competent authorities may incur as a result of delegation from ESMA under Article 48m of BMR. The power to adopt a delegated act on fees is provided in Article 48l(3) of BMR. According to that provision, the Commission is empowered to adopt a delegated act to specify the type of fees, the matters for which fees are due, the amount of the fees and the manner in which they are to be paid.
            
            
               2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
            
            
               On 18 June 2020, the Commission asked ESMA for an opinion (technical advice) on the Commission delegated regulations to be adopted under Article 48i(10) and 48l(3) of BMR.
            
            
               Following an in-depth technical assessment, ESMA conducted a public consultation on the technical aspects of the envisaged delegated regulation on fees from 23 September 2020 to 6 November 2020. 6 stakeholders responded to this public consultation. ESMA also conducted a public consultation on the technical aspects of the envisaged delegated regulation on fines from 23 December 2020 to 23 January 2021. 1 stakeholder responded to ESMA's consultation on fines.
            
            
               ESMA submitted its technical advice on the two topics in two separate reports to the Commission on 1 February 2020 and on 23 March 2021.
            
            
               In general, the respondents supported the approach ESMA proposed for the types of fees, their amount and manner of their collection. Some respondents deemed the fees proposed for third country administrators were too high, especially if considered that the third country administrators’ profits stemming from benchmark provision in the EU is limited. Stakeholder argues that such high level could act as a barrier for small firms or for larger firms which do not derive a large portion of their income from EU activity and ultimately reduce the number of benchmarks available for EU citizens. Another respondent encouraged ESMA to make transparent the overall cost for supervision as early as possible to enable benchmark administrators to make respective accruals in time. Finally, one respondent contested the existence of a legal basis in the empowerment for the delegated act in Article 48l for requiring administrators to submit audited revenue figures concerning the provision of benchmarks. On the basis of the above comments, ESMA, in its technical advice, lowered the proposed amount of fees for recognition of third country benchmarks.
            
            
               The sole respondent to the consultation on ESMA’s proposed procedure regarding fines provided feedback regarding the time limits within which the person subject to investigation may make written submissions throughout the investigation, the right to legal counsel, the lack of a cost bearing rule, the confidentiality of the enforcement file and the limitation periods for the imposition and enforcement of penalties, including periodic penalty payments.
            
            
               Benchmark administrators will fall under ESMA’s supervisory remit if they are administrators of critical benchmarks or benchmark administrators located in third countries and seeking to be recognised in the Union. For critical benchmarks, this transfer of competences, which will concern only EURIBOR, is without prejudice to international efforts to reduce the reliance on IBOR benchmarks and improve the liquidity of alternative risk-free rates.
                  1
               
            
            
               In February 2021, Regulation (EU) 2021/168 amended Regulation (EU) No 2016/1011, suspending the chapter governing the rules for use of third country benchmarks until at least 2023 (with a mandate to the Commission to extend this suspension until December 2025 if circumstances so require), and requiring the Commission, within the time indicated in Article 54, paragraph 6, to act on its obligation to review the third country provisions in their entirety and more in general the scope of Regulation (EU) No 2016/1011, if deemed necessary, submitting a proposal to reform this chapter to Council and Parliament
                  2
               . As a consequence, provisions on fines and on recognition and supervisory fees for third country benchmark administrators contained in this delegated act should apply only to administrators located in third countries which have voluntarily applied for recognition before the end of the transitional period and where the relevant national competent authority or ESMA has granted such recognition.
            
            
               EGESC and other views
            
            
               On 19 July 2021, the Commission consulted the Expert Group of the European Securities Committee (EGESC) on ESMA's technical advice and on the content of this delegated act. EGESC has approved the Commission's approach.
            
         
         
            
               The delegated act has been subject to a four week feedback period from […] to […] in line with the Commission's Better Regulation guidelines. […] contributions were received. 
            
            
               An impact assessment has not been carried out for the following reasons:
            
            
               –This Regulation follows the measures proposed by ESMA in its technical advice.
            
            
               –The decision to impose fines and periodic penalty payments on administrators of benchmarks under ESMA’s competence, which is the main policy decision, was taken in the Regulation, which already sets out the method for calculating these penalties and the situations when they should be imposed. The Regulation also establishes benchmarks administrators’ rights of defence. The overall objectives and the need for these rules were outlined in the impact assessment accompanying the Commission proposal for Regulation (EU) 2019/2175.
            
            
               –The decision to determine criteria for fees was taken in the Regulation. 
            
            
               –The provisions for fees and fines included in this delegated act are of a procedural nature. This Regulation follows the logic from previously adopted Regulations on fines and periodic penalty payments and criteria for fees that are in ESMA’s supervisory remit.
            
            
               3.LEGAL ELEMENTS OF THE DELEGATED ACT
            
            
               Chapter I of the proposed regulation sets out the general provisions, in particular the subject and scope of this Act and the relevant definitions.
            
            
               Chapter II of the proposed regulation sets out the provisions on fines and penalties. The articles describe the procedure for the exercise of power to impose fines or penalties.
            
            
               Chapter III of the proposed regulation sets out the provisions on fees. The articles contain the fee basis.
            
            
               Chapter IV of the proposed regulation sets out the final provisions. The articles contain the transitional provisions and the entry into force.
            
            
               COMMISSION DELEGATED REGULATION (EU) …/...
            
            
               of XXX
            
            
               supplementing Regulation (EU) No 2016/1011 of the European Parliament and of the Council by specifying fees and rules of procedure for measures applicable to the supervision by the European Securities Markets Authority of certain benchmark administrators
            
            
               THE EUROPEAN COMMISSION,
            
            
               Having regard to the Treaty on the Functioning of the European Union,
            
            
               Having regard to Regulation (EU) No 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014
                  3
               , and in particular Articles 48i(10) and 48l(3) thereof,
            
            
               Whereas:
            
            
               (1)In accordance with Article 48f and 48g of Regulation (EU) No 2016/1011 the European Securities and Markets Authority (‘ESMA’) is empowered to impose fines and periodic penalty payments under certain conditions on the benchmark administrators under its supervision. Article 48i(10) of Regulation (EU) No 2016/1011 requires the Commission to specify the rules of procedure for the exercise of the power to impose these fines or periodic penalty payments including the rights of the defence, the collection of fines or periodic penalty payments and the limitation periods for the imposition and enforcement of penalties. Article 48l(3) further requires the Commission to specify the supervisory fees that ESMA shall charge the benchmark administrators.
            
            
               (2)When ESMA finds that there are serious indications of possible existence of facts liable to constitute one or more infringements of the requirements set out in Article 42 of (EU) No 2016/1011 for benchmark administrators under its supervision, ESMA appoints an independent investigation officer within ESMA to investigate the matter. Upon completion of its work, the investigation officer should transmit a complete file to ESMA. Being informed of these findings and having the opportunity to respond to them is integral to the right of defence. Therefore, the person under investigation should be informed of the investigation officer’s findings, and should have the opportunity to respond to these findings within a reasonable time limit. The persons subject to the investigation should be allowed to be assisted by a counsel of their choice. The investigation officer should consider, whether, as a result of the submissions made by the person subject to the investigation, it is necessary to amend the statement of findings before submitting it to ESMA. The person subject to the investigation should be given the opportunity to make further submissions. 
            
         
         
            
               (3)ESMA should assess the completeness of the file submitted by the investigation officer based on a list of documents. To ensure that the person subject to the investigation is able to adequately prepare their defence, before adopting a final decision with regard to fines or supervisory measures, ESMA should make sure that they are given the opportunity to provide further written comments. 
            
            
               (4)In order to ensure that the person subject to the investigation cooperate with an investigation, ESMA should be able to take certain coercive measures. When ESMA has taken a decision requiring a person to bring an infringement to an end, or has requested to supply complete information or to submit complete records, data, procedure or any other material, or has taken a decision to conduct an on-site inspection, it may impose periodic penalty payments in order to compel the person subject to the investigation to comply with the decision taken. Before imposing periodic penalty payments ESMA should provide the person the opportunity to provide written submissions.
            
            
               (5)As the investigation officer carries out their work independently, ESMA should not be bound by the file they prepared. However, to ensure that the person subject to the investigation is able to adequately prepare their defence, where ESMA disagrees, they should, be informed and should be given the opportunity to respond.
            
            
               (6)To ensure that the person subject to the investigation is able to adequately prepare their defence, they should be informed and should have the opportunity to respond where ESMA agrees with all or part of the findings of the investigation officer,.
            
            
               (7)The right to be heard should be weighed against the need, under specific circumstances, for urgent action by ESMA. Where urgent action pursuant to Article 48e of Regulation (EU) 2016/1011 is warranted, the right to be heard of the person subject to the investigation should not be an impediment to ESMA taking urgent measures. In such cases, the right to be heard of the person subject to the investigation should be assured as soon as possible after taking the decision. The procedure should nonetheless grant the right of the person subject to the investigation to be heard by the investigation officer. 
            
            
               (8)ESMA’s power to impose a periodic penalty payment should be exercised with due regard for the right to defence and should not be maintained beyond the period necessary. Where ESMA makes a decision to impose a periodic penalty payment, the person concerned should therefore have the opportunity to be heard and any penalty payment should no longer be due as of the moment the person concerned complies with ESMA’s order to which it relates.
            
            
               (9)The files prepared by ESMA and the investigation officer contain information that is indispensable to the persons concerned in preparing for judicial or administrative proceedings. After a person subject to investigation has received the notification of statement of finding either from the investigation officer or from ESMA, the person should be entitled to have access to the file subject to the legitimate interest of other persons in the protection of their business secrets. The use of file documents accessed should only be permitted for judicial or administrative procedures in relation to infringements of Article 42 of Regulation (EU) No 2016/1011.
            
            
               (10)Both the power to impose fines and periodic penalty payments and the power to enforce fines and periodic penalties should be exercised within a reasonable time, and should therefore be subject to a limitation period. For reasons of consistency, limitation periods for the imposition and enforcement of fines or periodic penalty payments should take into account existing Union legislation applicable to the imposition and enforcement of penalties on supervised entities and ESMA’s experience in applying such legislation. In order for ESMA to ensure safekeeping of collected fines and periodic penalties, ESMA should deposit them on interest-bearing accounts that are opened exclusively for the purpose of a single fine or periodic penalty payments aiming at ending a single infringement. As a matter of budgetary prudence, ESMA should only transfer the amounts to the Commission once the decisions are final due to the rights to appeal being exhausted or lapsed.
            
            
               (11)Article 48l of Regulation (EU) No 2016/1011 requires ESMA to charge administrators of critical benchmarks and third-country benchmark administrators fees associated with applications for authorisation pursuant to Article 34 and for recognition under Article 32 of that Regulation and annual fees associated with the performance of its tasks in accordance with that Regulation in relation to critical benchmarks and recognised third-country benchmark administrators. Article 48l(2) of Regulation (EU) No 2016/1011 requires that such fees be proportionate to the turnover of the benchmark administrator concerned and cover all costs incurred by ESMA for the authorisation or recognition and the performance of its tasks in relation to critical benchmarks and third-country benchmark administrators in accordance with that Regulation. 
            
            
               (12)Fees charged for ESMA's activities related to administrators of critical benchmarks and of third country benchmarks should be set at a level such as to avoid a significant accumulation of deficit or surplus. Where there is a recurrent significant surplus or deficit, the level of fees should be revised. 
            
            
               (13)Fees associated with applications for authorisation (‘authorisation fees’) and recognition (‘recognition fees’) should be charged to administrators of critical and of third-country benchmarks to cover ESMA’s costs for processing applications for authorisation and recognition, including costs for verifying that applications are complete, requesting additional information, drafting of decisions and costs relating to the assessment of the systemic importance of critical benchmarks as well as the compliance of third-country benchmark administrators. 
            
            
               (14)Considering that the assessment of applications are equally resource intensive whether submitted by large or small administrators, the recognition fee should be a lump-sum recognition fee identical for all third country administrators.
            
            
               (15)On the basis of the expected workload and the cost this represents for ESMA, to be fully covered by the one-off recognition fee, the cost of assessing a recognition application should be set to EUR 40 000.
            
            
               (16)Critical benchmarks are subject to a more intense scrutiny under Regulation (EU) No 2016/1011, and their administrators need to comply with more stringent organisational requirements. As a result, the authorisation process represents a higher workload for ESMA. Therefore, the authorisation fee for the administrator of a critical benchmark should be significantly higher than the fee for assessing an application for recognition.
            
            
               (17)In order to promote the quality and completeness of applications  received and in line with ESMA’s approach towards the registration of entities it supervises, the recognition fee should be due at the time of the submission of the application.
            
            
               (18)Annual fees are also to be charged to administrators of critical benchmarks and of recognised third-country benchmark to cover ESMA’s costs for the performance of its tasks under Regulation (EU) No 2016/1011 as regards the ongoing supervision of such administrators. For third country benchmarks, such fees should cover the implementation and maintenance of cooperation arrangements with third-country authorities and the monitoring of regulatory and supervisory developments in third countries. For critical benchmarks, the fees should also cover the expenses sustained by ESMA with respect  to the supervision on an ongoing basis of compliance by those administrators with the requirements set out in Article 48l and Titles IV of Regulation (EU) No 2016/1011, including through comparable compliance, where granted. 
            
            
               (19)The cost of ongoing supervision of a critical benchmark depends on whether it requires ESMA to constitute and chair a college of supervisors for that benchmark, which represents a considerable additional workload. As a result, it is appropriate to differentiate between both cases in establishing supervision fees. By contrast, within the category of critical benchmarks, it should not be necessary to differentiate the supervision fees in accordance with the annual turnover of the administrator, as critical benchmarks by definition have a systemic impact in the Union.
            
            
               (20)Applying for recognition in the Union is a decision taken by third country benchmark administrators on commercial grounds, as offering their benchmarks in the Union is expected to generate revenue. Therefore, for recognised third country benchmark administrators, supervisory fees should be modulated as a function of the revenue they derive from the use of these benchmarks in the Union. In cases where no revenue is generated, a minimum supervisory fee should be set at EUR 20 000.
            
            
               (21)In order to discourage repeated or unfounded applications, recognition fees and authorisation fees should not be reimbursed in the case where an applicant withdraws its application. As the administrative work required in the case of an application for recognition or for authorisation that is refused is the same as that required in the case of an application that is accepted, recognition fees and authorisation fees should not be reimbursed if authorisation or recognition is refused.
            
            
               (22)In accordance with Regulation (EU) 2021/168 of the European Parliament and of the Council
                  4
                third country benchmarks can be used in the Union without the need for the relevant administrators to seek equivalence, recognition of endorsement in a transitional period extended until 2023. During this transitional period, recognition in the Union is an opt-in regime for benchmark administrators located in third countries, which indicates that their benchmarks will remain available for use in the Union after the transitional period ends. As a consequence, during such period, provisions on fines as well as on recognition and supervisory fees should apply only to administrators located in third countries which have voluntarily applied for recognition before the expiry of the transitional period introduced by Regulation (EU) 2021/168 and where the relevant national competent authority or ESMA has granted recognition.
            
         
         
            
               (23)In order to ensure the smooth application of the new supervisory powers attributed to ESMA, this Regulation should enter into force as a matter of urgency to ensure that ESMA is funded in a timely and appropriate manner as of the entry into force of Regulation (EU) 2019/2175 of the European Parliament and of the Council
                  5
                in January 2022,
            
            
               HAS ADOPTED THIS REGULATION:
            
            
               CHAPTER I 
            
            
               GENERAL PROVISIONS
            
            
               Article 1 
               Subject matter and scope
            
            
               This Regulation lays down rules of procedure for ESMA’s exercise of the power to impose fines and periodic penalty payments on administrators of benchmarks referred to in article 40(1) of Regulation (EU) No 2016/1011, and rules on fees that ESMA can charge to those administrators in relation to authorisation, recognition and supervision . 
            
            
               Article 2 
               Definitions
            
            
               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) No 2016/1011;
            
            
               (1)“third country benchmark” means a benchmark whose administrator is located outside the Union.
            
            
            
               CHAPTER II
            
            
               RULES OF PROCEDURE FOR FINES AND PENALTIES
            
            
               Article 3
                Rules of procedure in infringement proceedings before the investigation officer
            
            
               1.Upon completion of an investigation of potential infringements listed in Article 42(1), point (a), of Regulation (EU) No 2016/1011, and before submitting a file to ESMA, the investigation officer as referred to in Article 48i(1) of that Regulation, shall inform the person subject to investigation in writing of its findings and shall provide that person with the opportunity to make written submissions pursuant to paragraph 3. The statement of findings shall set out the facts liable to constitute one or more of the infringements of the requirements set out in Title VI of Regulation (EU) No 2016/1011, including an assessment of the nature and seriousness of those infringements, taking into account the criteria laid down in Article 48e(2) of that Regulation.
            
            
               2.The statement of findings shall set a reasonable time limit for the person subject to investigation to make its written submissions. In investigations other than those referred to in Article 6, this time limit shall be at least four weeks. The investigation officer shall not be obliged to take into account a written submissions received after that time limit has expired.
            
            
               3.In its written submissions, the person subject to investigation may set out the facts, which it considers relevant for its defence and shall, if possible, attach documents  as proof of the facts set out. The person subject to investigation may propose that the investigation officer hears other persons who may corroborate the facts set out in the submissions of the person subject to investigation.
            
            
               4.The investigation officer may invite a person subject to investigation to which a statement of findings has been addressed to attend an oral hearing. The person subject to investigation may be assisted by a counsel of their choice. Oral hearings shall not be  public.
            
            
               Article 4
            
            
               Rules of procedure in infringement proceedings before ESMA with regard to fines and supervisory measures
            
         
         
            
               1.The complete file to be submitted by the investigation officer to ESMA shall include the following documents:
            
            
               –the statement of finding and a copy thereof addressed to the benchmark administrator or the person subject to the investigation;
            
            
               –a copy of the written submission by the benchmark administrator or the person subject to the investigation;
            
            
               –the minutes of any oral hearing.
            
            
               2.When a file is incomplete, ESMA shall make a reasoned request for additional documents to the investigation officer.
            
            
               3.Where ESMA considers that the facts described in the statement of findings of the investigation officer do not to constitute infringements of the requirements set out  in Title VI of Regulation (EU) No 2016/1011, it shall decide to close the case and it shall notify that decision to the person subject to investigation. 
            
            
               4.Where ESMA does not agree with the findings of the investigation officer it shall submit a new statement of findings to the person subject to investigation. That statement of findings shall set a time limit of at least four weeks within which the person subject to investigation may make written submissions. ESMA shall not be obliged to take into account written submissions received after the expiry of that time limit for adopting a decision on the existence of an infringement and on supervisory measures and the imposition of a fine in accordance with Article 48e and 48f of Regulation (EU) No 2016/1011. 
            
            
               5.Where ESMA agrees with all or some of the findings of the investigation officer it shall inform the person subject to investigation accordingly. Such communication shall set a time limit of at least four weeks within which the person subject to investigation may make written submissions. ESMA shall not be obliged to take into account written submissions received after the expiry of that time limit for adopting a decision on the existence of an infringement and on supervisory measures and the imposition of a fine in accordance with Articles 48e and 48f of Regulation (EU) No 2016/1011. ESMA may invite the person subject to investigation to which a statement of findings has been addressed to attend an oral hearing. The person subject to investigation may be assisted by a counsel of their choice. Oral hearings shall not be public.
            
            
               6.If ESMA decides that one or more of the infringements of the requirements provided for in Title VI of Regulation (EU) No 2016/1011 has been committed by a person subject to investigation and has adopted a decision imposing a fine in accordance with Article 48f of that regulation, it shall notify immediately that decision to the person subject to investigation.
            
            
               Article 5
               Rules of procedure in infringement proceedings before ESMA with regard to periodic penalty payments
            
            
               1.Before making a decision imposing a periodic penalty payment pursuant to Article 48g of Regulation (EU) No 2016/1011, ESMA shall submit a statement of findings to the person subject to the proceedings setting out the reasons justifying the imposition of a periodic penalty payment and the amount of the periodic penalty payment per day of non-compliance. 
            
            
               2.The statement of findings shall set a time limit of at least four weeks within which the person subject to the proceeding may make written submissions. ESMA shall not be obliged to take into account written submissions received after the expiry of that time limit for deciding on the periodic penalty payment.
            
            
               3.Once the benchmark administrator or person subject to the proceeding referred to in article 48b(1) of Regulation (EU) No 2016/1011 has complied with the relevant decision referred to in Article 48g(1) of Regulation (EU) No 2016/1011, a periodic penalty payment shall no longer be imposed. 
            
            
               4.A decision by ESMA to impose a periodic penalty payment shall indicate the legal basis and the reasons for the decision and the amount and the starting date of the periodic penalty payment.
            
            
               5.Upon request, or at its own initiative, ESMA shall invite the person subject to the proceedings to attend an oral hearing. The person subject to the proceedings may be assisted by a counsel of their choice. Oral hearings shall not be public.
            
            
               Article 6
               Rules of procedure for interim decisions on supervisory measures
            
            
               1.By way of derogation from Article 4(4), (5) and (6) and Article 5(1) and (4), the procedure set out in this Article shall apply where ESMA adopts interim decisions pursuant to Article 48j(1), second subparagraph, of Regulation (EU) No 2016/1011.
            
            
               2.Where ESMA decides that an infringement of a requirement  provided for in Title VI of Regulation (EU) No 2016/1011 has been committed by a person subject to investigation and adopt an interim decision imposing supervisory measures pursuant to Article 48e of Regulation (EU) No 2016/1011, it shall notify immediately that interim decision to the person subject to the interim decision.
            
            
               ESMA shall set a time limit of at least four weeks within which the person subject to interim decision may make a written submission on the interim decision. ESMA shall not be obliged to take into account a written submission received after the expiry of that time limit. 
            
            
               Upon request, ESMA shall grant access to the file to the person subject to the interim decision. File documents accessed shall be used only for the purposes of judicial or administrative proceedings concerning the application of Regulation (EU) No 2016/1011.
            
         
         
            
               ESMA may invite the person subject to the interim decision to attend an oral hearing. The person subject to the interim decision may be assisted by a counsel of their choice. Oral hearings shall not be public.
            
            
               3.ESMA shall take a final decision as soon as possible after the adoption of the interim decision.
            
            
               Where ESMA considers, after having heard the person subject to interim decision, that an infringement of a requirement set out in Title VI of Regulation (EU) No 2016/1011 have been committed by the person subject to the interim decision, it shall adopt a confirmatory decision imposing one or more supervisory measures laid down in Article 48e of Regulation (EU) No 2016/1011. ESMA shall immediately notify that decision to the person subject to the interim decision.
            
            
               4.Where ESMA adopts a final decision that does not confirm the interim decision, the interim decision shall be deemed to be repealed.
            
            
               Article 7
               Access to the file and use of documents
            
            
               1.Upon request, ESMA shall grant access to the file to the person subject to the investigation to whom the investigation officer or ESMA has sent a statement of findings. Access shall be granted following the notification of any statement of findings.
            
            
               2.File documents accessed shall be used by the person referred to in paragraph 1 only for the purposes of judicial or administrative proceedings concerning the application of Regulation (EU) No 2016/1011.
            
            
               Article 8
               Limitation periods for the imposition of fines and periodic penalty payments
            
            
               1.Fines and periodic penalty payments on benchmark administrators and other persons subject to investigation shall be subject to a limitation period of five years.
            
            
               2.The limitation period referred to in paragraph 1 shall begin on the day following that on which the infringement is committed. In  case of continued or repeated infringements, that limitation period shall begin on the day on which the infringement ceases.
            
            
               3.Any action taken by ESMA or by the national competent authority acting at the request of ESMA in accordance with article 48m of Regulation (EU) No 2016/1011for the purpose of the investigation or proceedings in respect of an infringement pursuant to title VI of Regulation (EU) No 2016/1011 shall interrupt the limitation period for the imposition of fines and periodic penalty payments. That limitation period shall be interrupted with effect from the date on which the action is notified to the benchmark administrators or the person subject to the investigation in respect of an infringement pursuant to Regulation (EU) No 2016/1011.
            
            
               4.Each interruption as referred to in paragraph 3 shall restart the limitation period. The limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without ESMA having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which limitation is suspended pursuant to paragraph 5.
            
            
               5.The limitation period for imposing fines and periodic penalty payments shall be suspended for as long as the decision of ESMA is subject to proceedings pending before the Board of Appeal, referred to in Article 60 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council
                  6
               , and before the Court of Justice of the European Union, in accordance with Article 48k of Regulation (EU) No 2016/1011.
            
            
               Article 9
               Limitation periods for the enforcement of penalties
            
            
               1.The power of ESMA to enforce decisions taken pursuant to Articles 48e and 48g of Regulation (EU) No 2016/1011 shall be subject to a limitation period of five years. 
            
            
               2.The limitation period referred to in paragraph 1 shall be calculated from the day following that on which the decision becomes final. 
            
            
               3.The limitation period for the enforcement of penalties shall be interrupted by: 
            
            
               (a)a notification by ESMA to the person subject to the proceedings of a decision varying the original amount of the fine or periodic penalty payment;
            
            
               (b)any action of ESMA, of a national competent authority acting at the request of ESMA in accordance with article 48m of Regulation (EU) No 2016/1011, designed to enforce payment or payment terms and conditions of the fine or periodic penalty payment.
            
            
               4.Each interruption referred to in paragraph 3 shall restart the limitation period.
            
         
         
            
               5.The limitation period for the enforcement of penalties shall be suspended for so long as:
            
            
               (a)time  to pay is allowed;
            
            
               (b)enforcement of payment is suspended pursuant to a pending decision of the ESMA Board of Appeal, in accordance with Article 60 of Regulation (EU) No 1095/2010, and the Court of Justice of the European Union, in accordance with Article 48k of Regulation (EU) No 2016/1011.
            
            
               Article 10
               Collection of fines and periodic penalty payments
            
            
               The amounts of fines and periodic penalty payments collected by ESMA shall be lodged to an interest-bearing account opened by ESMA until such time as they become final. Where several fines and periodic penalty payments are collected by ESMA in parallel, ESMA shall ensure that they are lodged to different accounts or subaccounts. Fines and periodic penalty payments paid shall not be entered into ESMA's budget or recorded as budgetary amounts. 
            
            
               Once ESMA has established that the fines or periodic penalty payments have become final following the  exhaustion of all appeal rights that accounting officer shall transfer those amounts and potential interest accruing to the Commission. These amounts shall then be entered in the union Revenue budget. 
            
            
               ESMA shall report on a regular basis to the Commission on the amounts of fines and periodic penalty payments imposed and their status.
            
            
               CHAPTER III
            
            
               FEES 
            
            
               Article 12
               Recognition fees and authorisation fees
            
            
               1.A benchmark administrator established in a third country that applies for recognition pursuant to article 32 of Regulation (EU) No 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) No 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.
            
            
               Article 13
               Annual supervisory fees
            
            
               1.The administrator of one or more critical benchmarks shall pay an annual supervisory fee: 
            
            
               (a)of EUR 195 000, in cases where ESMA has to chair a college of supervisors pursuant to article 46 of Regulation (EU) No 2016/1011;
            
            
               (b)of EUR 155 000, in cases where ESMA does not have to chair a college of supervisors pursuant to article 46 of Regulation (EU) No 2016/1011.
            
            
               2.A benchmark administrator established in a third country recognised by ESMA shall pay an annual supervisory fee calculated as follows:
            
         
         
            
               (a)for a given year (n) should 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 No 1011/2016 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 should be its share of the applicable turnover in the aggregate turnover generated by all recognised third country administrators
            
            
               Turnover Coefficient “administrator i”  = 
            
            
               (d)the minimum annual supervisory fee for recognised third country administrators should 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 should be calculated on the basis of the latest available information for annual fees. The annual fees paid are not reimbursed. 
            
            
               Article 14
               Annual supervisory fees in year of recognition or authorisation
            
            
               By way of derogation from article 13, 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 lessening the supervisory fee adjusting it by the following coefficient:
            
            
               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. 
            
            
               Article 15
               Applicable turnover
            
            
               The turnover of a recognised third country benchmark administrator shall be its revenues accrued from provision of benchmarks in the Union during the benchmark administrator’s most recently completed financial year.
            
            
               A recognised third country benchmark administrator shall provide ESMA, on an annual basis, with audited figures confirming its revenues accrued from the provision of benchmarks in the Union. The figures shall be certified by an external audit and shall be submitted to ESMA by electronic means before 30 September every year. If a third country administrator is recognised after 30 September of a calendar year, it shall provide the figures immediately upon recognition and by end of the calendar year of recognition. The documents containing audited figures shall be provided in a language custom to the financial services.
            
            
               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 by the European Central Bank shall be used.
            
            
               Third country administrators recognised before 1 January 2022 shall provide ESMA with their turnover of 2020 by 31 January 2022.
            
            
               Article 16 
               General payment modalities
            
            
               1.All fees shall be payable in euro. 
            
            
               2.Any late payments shall incur a daily penalty equal to 0,1 % of the amount due.
            
            
               Article 17
               Payment of application and authorisation fees
            
         
         
            
               1.The fees for application, authorisation or extension of authorisation shall be paid in full at the time the benchmark administrator applies and 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.
            
            
               Article 18
               Payment of annual supervisory fees
            
            
               1.The annual supervisory fee referred to in Article 13 for a financial year shall be paid to ESMA before 31 March of the calendar year for which they are due. The fees should 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.
            
            
               Article 19
               Reimbursement of national competent authorities
            
            
               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) No 1011/2016, 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.
            
            
               CHAPTER V
            
            
               TRANSITIONAL AND FINAL PROVISIONS
            
            
               Article 20
               Transitional provisions
            
            
               1.Article 12 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 17(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 13(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 16(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. 
            
            
            
               Article 21
               Entry into force
            
            
               This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
            
         
         
            
               This Regulation shall be binding in its entirety and directly applicable in all Member States.
            
            
               Done at Brussels,
            
            
               
                     For the Commission
               
               
                     The President
                     Ursula VON DER LEYEN