Regulation No. 73 of 28.07.2022 on the Disclosure of Market Data

REGULATION No. 73 of 28.07.2022 on the Disclosure of Market Data Pub. - State Gazette, No. 64 of 09.08.2022; amended, No. 36 of 21.04.2023 Adopted by Decision No. 242-N of 28.07.2022 of the Commission for Financial Supervision

Chapter One
GENERAL PROVISIONS

Art. 1. This Regulation regulates additional requirements regarding the disclosure of market data.

Art. 2. (Amend. - State Gazette, No. 36 of 2023) (1) The requirements of this Regulation apply to market operators and investment intermediaries that organize trading venues, as well as to approved reporting mechanisms pursuant to Art. 1, para. 3 of the Law on Markets in Financial Instruments. (2) The requirements of this Regulation, with the exception of Chapter Eight, apply to systematic participants. (3) (New - State Gazette, No. 36 of 2023) The requirements of Chapter Nine apply to approved reporting mechanisms pursuant to Art. 1, para. 3 of the Law on Markets in Financial Instruments.

Chapter Two
MARKET DATA POLICY

Art. 3. (1) The entity referred to in Art. 2 shall adopt, apply, and publish a market data policy in an easily accessible format on its website.
(2) If the policy referred to in para. 1 consists of more than one document, the entity referred to in Art. 2 shall indicate this and publish all documents comprising the policy referred to in para. 1 in one location on its website.
(3) The policy referred to in para. 1 shall contain all relevant information regarding market data, presented in a clear and understandable manner, including the tariff for providing market data and all indirect services for access to and use of market data, so that clients can understand the fees, procedures, and conditions applicable to them. (4) The entity referred to in Art. 2 shall provide additional information regarding the policy referred to in para. 1 upon request by a client.

Chapter Three
METHODOLOGY FOR DETERMINING THE FEE FOR PROVIDING MARKET DATA

Art. 4. (1) The entity referred to in Art. 2 shall adopt and apply a cost-based methodology for determining the fee for providing market data.
(2) The methodology referred to in para. 1 shall include:

1. the fees for providing market data and fees for all additional services for access to and use of market data;
2. a description of whether a margin is included and how it is determined;
3. information on how the fee for market data is based on the costs of preparing and distributing them.
   (3) In preparing the methodology referred to in para. 1, the entity referred to in Art. 2 shall take into account and describe all costs specified in the Final Guidelines on MiFID II/MiFIR obligations regarding market data (ESMA70-156-4263 BG), issued by the European Securities and Markets Authority, for which the Commission for Financial Supervision has decided on their application pursuant to Art. 13, para. 1, item 26 of the Law on the Commission for Financial Supervision, hereinafter referred to as "the Final Guidelines". (4) The entity referred to in Art. 2 shall review the methodology referred to in para. 1 annually, by 31 January, updating it as necessary.

Art. 5. (1) The entity referred to in Art. 2 shall stipulate penalties in the market data license agreement for breach of the agreement, taking into account the principle of charging on reasonable commercial terms.
(2) The entity referred to in Art. 2 shall invoke the penalties provided for in para. 1 only when a breach of the market data license agreement has been established.
(3) The amount of liability for breach of the market data license agreement shall be based on the principle of lost profits.
(4) The entity referred to in Art. 2 shall request information from clients to assist in the assessment of potential breaches of market data license agreements.
(5) For the establishment of breaches of the market data license agreement, the entity referred to in Art. 2 may not introduce new audit practices that could create unnecessary costs for clients.

Chapter Four
PROVISION OF MARKET DATA ON A NON-DISCRIMINATORY BASIS

Art. 6. (1) The entity referred to in Art. 2 shall include in its policy pursuant to Art. 3, para. 1 the categories of clients and the manner in which they are determined in accordance with the use of market data.
(2) In determining the categories of clients, the entity referred to in Art. 2 shall use criteria based on verifiable and accessible facts relevant to more than one client.
(3) The criteria referred to in para. 2 shall be clear so that clients can understand the category to which they belong.
(4) The policy referred to in Art. 3, para. 1 shall include applicable fees and conditions for the use of market data. The policy referred to in Art. 3, para. 1 shall include an explanation of the reasons for differences in conditions for data use and fees for different categories of clients, where applicable. (5) The entity referred to in Art. 2 shall justify any changes made to the policy referred to in Art. 3, para. 1 that result in a change in client categorization.

Art. 7. (1) The policy referred to in Art. 3, para. 1 shall contain information on how fees are applied when a client belongs to more than one category. In the cases referred to in the first sentence, the entity referred to in Art. 2 shall charge for the provision of market data only once for the respective client. (2) By way of exception, the entity referred to in Art. 2 may proportionally increase the relevant fee when clients use market data repeatedly and in different ways. (3) In the cases referred to in para. 2, the policy referred to in Art. 3, para. 1 shall include the amount of the fee increase including a reasonable margin, the cases in which this increase applies, and an explanation of its compliance with the principle that the fee for market data is based on the costs of preparing and distributing them.

Art. 8. The entity referred to in Art. 2 shall offer clients belonging to the same category the same service options.

Art. 9. (1) The entity referred to in Art. 2 may adopt, apply, and publish a discount policy, in which it describes the cases, conditions, and duration of application of the relevant discounts.
(2) The conditions for claiming a discount by clients shall be based on verifiable and accessible facts relevant to more than one client, and explained in such a way that clients can understand whether and when the discount is applicable to them. (3) Discounts shall not be used to create additional categories of clients or cases of data use. (4) If data reporting services are offered in a bundle, the discount for bundled services shall not exceed the fee for the service offered separately.

Chapter Five
CHARGING ON A PER-USER BASIS

Art. 10. (1) For the purposes of Art. 87 of Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive (OJ, L 87/1 of 31 March 2017), hereinafter referred to as "Delegated Regulation (EU) 2017/565", charging on a per-user basis is a fee collection model for data display that allows clients to avoid multiple billing if market data is received through multiple entities referred to in Art. 2. (2) In charging on a per-user basis, the entity referred to in Art. 2 shall take into account the number of active users who have access to market data.

Art. 11. (1) In charging on a per-user basis, the license agreement shall regulate the ways in which the client:

1. identifies individual active users;
2. provides information to the entity referred to in Art. 2 regarding the number of active users.
   (2) The entity referred to in Art. 2 may request a preliminary check for the purpose of confirming the number of users.

Art. 12. (1) When charging on a per-user basis is disproportionate to the costs of providing data and the entity referred to in Art. 2 cannot offer it to clients, it shall disclose information specifying the characteristics of its business model that make charging on a per-user basis disproportionate, and the reasons why charging on a per-user basis is inapplicable. (2) When the reasons referred to in para. 1 lead to excessive administrative costs, the entity referred to in Art. 2 shall disclose in the information referred to in para. 1 the amount of costs envisaged for the application of the per-user basis.

Chapter Six
BUNDLED AND UNBUNDLED MARKET DATA

Art. 13. (1) The entity referred to in Art. 2 shall inform clients that market data can be purchased separately from additional services (unbundled market data).
(2) Additional services are services involving the provision of data other than pre- and post-trade data.
(3) The purchase of market data shall not be bundled with additional services.
(4) Prices for purchasing bundled and unbundled data shall be included in the policy referred to in Art. 3, para. 1.

Chapter Seven
OBLIGATION OF TRANSPARENCY

Art. 14. (1) In the policy referred to in Art. 3, para. 1, terms shall be used according to their meaning in this Regulation, and where definitions are not given in the Regulation - according to those given in Annex I of the Final Guidelines. (2) When other terms are used in the policy referred to in Art. 3, para. 1, they shall be clearly defined.

Art. 15. (1) The entity referred to in Art. 2 shall specify in the policy referred to in Art. 3, para. 1 and in the template constituting Annex II of the Final Guidelines, the fee for displayed data per number of active users.
(2) The entity referred to in Art. 2 shall provide clients with the opportunity to measure access to data display by the number of active users, and may include an alternative unit of measurement for data display in the policy referred to in Art. 3, para. 1. (3) When determining an alternative unit of measurement pursuant to para. 2, the policy referred to in Art. 3, para. 1 shall indicate how fees are applied when using a unit of measurement other than the number of active users, and the circumstances under which this option is available. (4) When the entity referred to in Art. 2 has determined more than one unit of measurement, it shall provide clients with the opportunity to choose the unit of measurement. (5) The policy referred to in Art. 3, para. 1 shall specify the unit of measurement for data not related to visual display, the possibility of their application, and information on why the chosen method is considered most suitable for counting the provision of data to clients not related to visual display. (6) The unit of measurement referred to in para. 5 shall be unique, without combining two or more counting units.

Art. 16. (1) The entity referred to in Art. 2 shall publish in the template referred to in Art. 15, para. 1 the information required pursuant to Art. 89 of Delegated Regulation (EU) 2017/565 and Art. 11 of Commission Delegated Regulation (EU) 2017/567 of 18 May 2016 supplementing Regulation (EU) No 600/2014 of the European Parliament and of the Council as regards definitions, transparency, portfolio compression and supervisory measures for intervention with regard to products and position management (OJ, L 87/90 of 31 March 2017), hereinafter referred to as "Delegated Regulation (EU) 2017/567". (2) The entity referred to in Art. 2 shall provide the information so that clients can compare the services offered, and, if possible, the information shall be provided separately for pre- and post-trade data. (3) Information outside the scope of the transparency obligation shall not be provided in the template referred to in Art. 15, para. 1. Additional information shall be provided to clients in an easily accessible manner.

Art. 17. (1) The entity referred to in Art. 2 shall publish summary information on the method of determining the fee and a detailed explanation of the analytical accounting methodology used to achieve compliance with Art. 89(2)(d) of Delegated Regulation (EU) 2017/565 and Art. 11(2)(d) of Delegated Regulation (EU) 2017/567, according to the template referred to in Art. 15, para. 1. (2) The explanation referred to in para. 1 shall also include a list of all types of costs included in market data fees, examples of such costs, as well as principles for allocation and allocation coefficients for general costs or other costs related to other services. The explanation shall include a description of whether a margin is included and how it is determined. (3) If the entity referred to in Art. 2 publishes the actual costs for preparing or providing market data or the actual level of margin, the disclosed information must allow clients to understand how the fee for market data is determined and to compare the methodologies of different entities referred to in Art. 2.

Art. 18. In the market data license agreement, the entity referred to in Art. 2 shall specify:

1. all terms and conditions of its audit practices;
2. information on whether fees for market data can be applied retroactively;
3. information on how clients prepare for the audit, what information must be stored and for what period of time.

Chapter Eight
PROVISION OF DELAYED DATA

Art. 19. (1) The entity referred to in Art. 2, para. 1 shall provide market data to professional and non-professional clients free of charge 15 minutes after their initial publication, hereinafter referred to as "delayed data".
(2) For the purposes of para. 1, the entity referred to in Art. 2, para. 1 may require registration of users on its website.

Art. 20. (1) The provided delayed data shall cover all trading systems managed by trading venues.
(2) Delayed trade data shall contain all fields for the purposes of post-trade transparency, including the identifiers specified in Annex I of Commission Delegated Regulation (EU) 2017/587 of 14 July 2016 supplementing Regulation (EU) No 600/2014 of the European Parliament and of the Council on markets in financial instruments as regards regulatory technical standards for transparency requirements for trading venues and investment firms with regard to shares, depositary receipts, exchange-traded funds, certificates and other similar financial instruments, as well as for trade execution obligations for some shares traded on a trading venue or by a systematic participant (OJ, L 87/387 of 31 March 2017) and in Annexes I and II of Commission Delegated Regulation (EU) 2017/583 of 14 July 2016 supplementing Regulation (EU) No 600/2014 of the European Parliament and of the Council on markets in financial instruments as regards regulatory technical standards for transparency requirements affecting trading venues and investment firms in relation to bonds, structured finance products, emission allowances and derivatives (OJ, L 87/229 of 31 March 2017). (3) The provision of pre-trade delayed data shall include at least the first available best bid and best offer prices and the depth of trading interest at those prices.

Art. 21. (1) The entity referred to in Art. 2, para. 1 shall provide the delayed data on its website in a processable and machine-readable format according to the rules of Art. 14 of Commission Delegated Regulation (EU) 2017/571 of 2 June 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards regulatory technical standards on licensing of data reporting services providers, their organisational requirements and publication of trade information (OJ, L 87/126 of 31 March 2017). (2) The published delayed data shall be available to clients for a sufficient period of time, but at least until midnight of the next working day after the day of publication. (3) The entity referred to in Art. 2, para. 1 shall provide pre-trade delayed data to clients in a machine-readable format that is accessible until the next quote, or if there is no such quote, until midnight of the next working day after the day of publication.

Art. 22. (1) By way of exception, the entity referred to in Art. 2, para. 1 may charge clients for the use of delayed data when the client provides the delayed data to third parties in unmodified form for a fee or creates and provides a value-added service to third parties using the delayed data. (2) A value-added service referred to in para. 1 is a product:

1. created based on unprocessed delayed data provided to a client by the entity referred to in Art. 2, para. 1;
2. which is sold for payment to third parties.
   (3) When a client publishes delayed data on its website without charging a fee to third parties, the entity referred to in Art. 2, para. 1 may not impose a fee on it.
   (4) Outside the cases referred to in para. 1, the entity referred to in Art. 2, para. 1 shall not charge a client when the client distributes the provided data within its institution or group or uses the data for internal purposes.

Chapter Nine
(NEW - State Gazette, No. 36 of 2023)
CLOUD SERVICES OUTSOURCING TO EXTERNAL PROVIDERS

Art. 23. (New - State Gazette, No. 36 of 2023) When outsourcing cloud services to external providers, the entities referred to in Art. 2, paras. 1 and 3 shall comply with the Guidelines on Outsourcing to External Providers of Computer Services "in the Cloud" (ESMA50-164-4285 BG), issued by the European Securities and Markets Authority, for which the Commission has decided on their application pursuant to Art. 13, para. 1, item 26 of the Law on the Commission for Financial Supervision.

SUPPLEMENTARY PROVISIONS

§ 1. For the purposes of this Regulation:

1. "Data not related to visual display" means all market data that is not defined as data related to visual display.
2. "Data related to visual display" means market data provided or used through display and which is normally readable by any person.
3. "License Agreement" means an agreement between the entity referred to in Art. 2 and a client for the provision of market data and for their pricing reflection in the policy referred to in Art. 3, para. 1.
4. "Unit of Measurement" means the unit used to measure the degree of use of market data and which is applied for determining fees.
5. "Market Data" means the data that the entity referred to in Art. 2 must disclose before and after the conclusion of trades.

§ 1a. (New - State Gazette, No. 36 of 2023) This Regulation ensures the application of the following guidelines adopted by the European Securities and Markets Authority:

1. The Final Guidelines on MiFID II/MiFIR obligations regarding market data (ESMA70-156-4263 BG);
2. The Guidelines on Outsourcing to External Providers of Computer Services "in the Cloud" (ESMA50-164-4285 BG).

TRANSITIONAL AND FINAL PROVISIONS

§ 2. The entities referred to in Art. 2 shall bring their activities into compliance with the requirements of this Regulation within 3 months from its entry into force.

§ 3. (Amend. - State Gazette, No. 36 of 2023) The Regulation is issued on the basis of Art. 4a, Art. 85, para. 9 and Art. 207, para. 2 of the Law on Markets in Financial Instruments and is adopted by Decision No. 242-N of 28.07.2022 of the Commission for Financial Supervision.

Chairman: Boyko Atanasov

Transitional and Final Provisions to the Regulation for Amendment and Completion of Regulation No. 38 of 21.05.2020 on the Requirements for the Activity of Investment Intermediaries (State Gazette, No. 36 of 21.04.2023)

§ 12. The following amendments and additions are made to Regulation No. 73 of 28.07.2022 on the Disclosure of Market Data (State Gazette, No. 64 of 2022):

1. In Art. 2, para. 3 is created:
   "(3) The requirements of Chapter Nine apply to approved reporting mechanisms pursuant to Art. 1, para. 3 of the Law on Markets in Financial Instruments."
2. Chapter Nine with Art. 23 is created:
   "Chapter Nine
   CLOUD SERVICES OUTSOURCING TO EXTERNAL PROVIDERS Art. 23. When outsourcing cloud services to external providers, the entities referred to in Art. 2, paras. 1 and 3 shall comply with the Guidelines on Outsourcing to External Providers of Computer Services "in the Cloud" (ESMA50-164-4285 BG), issued by the European Securities and Markets Authority, for which the Commission has decided on their application pursuant to Art. 13, para. 1, item 26 of the Law on the Commission for Financial Supervision."
3. The name of the subsection "supplementary provision" is replaced with "supplementary provisions" and § 1a is created therein:
   "§ 1a. This Regulation ensures the application of the following guidelines adopted by the European Securities and Markets Authority:
4. The Final Guidelines on MiFID II/MiFIR obligations regarding market data (ESMA70-156-4263 BG);
5. The Guidelines on Outsourcing to External Providers of Computer Services "in the Cloud" (ESMA50-164-4285 BG)."
6. In § 3 of the Transitional and Final Provisions, after the words "on the basis of", "Art. 4a" is added and a comma is placed.