On 14 December 2021, the European Securities and Markets Authority (ESMA) issued a statement clarifying the transfer of competences and duties relating to supervisory and enforcement activity in the field of certain data reporting services providers (DRSPs) from Member State competent authorities (NCAs) to ESMA.
In the statement ESMA outlines the approach for DRSP supervision that it intends to follow until the adoption of the delegated acts contained in Articles 2(3), 38k(10) and 38n(3) of MiFIR (as amended by the ESAs Review Regulation). MiFIR does not envisage the consequences of a late application date of these delegated acts, including the one on the criteria for the derogation from ESMA supervision. It therefore remains unclear which authority (ESMA or the relevant NCA) would be competent for authorisation and ongoing supervision of DRSPs from 1 January 2022 until the entry into force of the delayed delegated act.
The statement provides:
- As of 1 January 2022, ESMA would take over supervisory responsibilities from the NCAs only for the DRSPs which, according to ESMA’s best estimations, and on the basis of the derogation criteria as identified in the 30 July 2021 draft delegated act published by the Commission on its website, may likely fall under its remit once the delegated act will apply. ESMA will bilaterally inform the DRSPs that it is planning to start supervising from 1 January 2022.
- Once the delegated act on derogation criteria and supervisory fees becomes applicable, ESMA will charge fees to the DRSPs which are not derogated and fall under its supervision, for the entire period starting from 1 January 2022.
- ESMA encourages NCAs to continue to oversee DRSPs which will likely be subject to derogation from ESMA supervision and, therefore, fall under NCAs supervisory purview once the delegated act will apply.
- ESMA will continue to monitor market and regulatory developments, and to periodically reassess whether this approach remains fit for purpose.