202 Amendments of Philippe LAMBERTS related to 2013/0314(COD)
Amendment 11 #
Proposal for a regulation
Recital 27
Recital 27
(27) Many benchmarks are determined from input data that is provided by regulated venues, energy exchanges and emission allowance auctions. These venues are subject to regulation and supervision that ensures the integrity of the input data, provides for governance requirements and procedures for the notification of breaches. Therefore, provided they are sourced from venues subject to post trade transparency requirements, including a third country market considered as equivalent to a regulated market in the Union, these benchmarks are released from certain obligations in order to avoid dual regulation and because their supervision ensures the integrity of the input data used.
Amendment 12 #
Proposal for a regulation
Recital 29
Recital 29
(29) Different types of benchmark and different benchmark sectors have different characteristics, vulnerabilities and risks. The provisions of this Regulation should be further specified for particular benchmark sectors and types. Interbank interest rate benchmarks are benchmarks that play an important role in the transmission of monetary policy and so it is necessary to specify how these provisions would apply to these benchmarks in this Regulation. Commodity benchmarks are widely used and have sector specific characteristics and so it is necessary to specify how these provisions would apply to these benchmarks in this Regulation. Interbank interest rate benchmarks, commodity benchmarks and foreign exchange benchmarks should be subject to direct supervision by ESMA, in cooperation with ACER where energy pricing benchmarks are concerned.
Amendment 19 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point a
Article 3 – paragraph 1 – point 1 – point a
(a) that is published or made available to the public, or made available to a benchmark user;
Amendment 24 #
Proposal for a regulation
Article 3 – paragraph 1 – point 14 – point f a (new)
Article 3 – paragraph 1 – point 14 – point f a (new)
(fa) market participants as defined in point (7) of Article 2 of Regulation (EU) No 1227/2011 of the European Parliament and of the Council ;
Amendment 26 #
Proposal for a regulation
Article 3 – paragraph 1 – point 20
Article 3 – paragraph 1 – point 20
(20) ‘commodity benchmark’ means a benchmark where the underlying asset for the purposes of point (1)(c) of this Article is a commodity within the meaning of point (2) of Article 2 of Commission Regulation (EC) No 1287/200627 ; Emission allowances as defined in point (11) of Section C of Annex I of [MiFID] shall not be considered commodities for the purpose of this Regulation; __________________ 27 OJ L 241, 2.9.2006, p. 1.
Amendment 27 #
Proposal for a regulation
Article 3 – paragraph 1 – point 21
Article 3 – paragraph 1 – point 21
(21) ‘critical benchmark’ means a benchmark, the majority of contributors to which are super with reference financial instruments having a notional value of at least 100 billion euro; or a benchmark that it in the event it were to be provided or were provisded entities and that reference financial instruments having a notional value of at least 500 billion eurousing an unrepresentative set of contributors or input data, this would have a significant adverse impact on financial stability, the orderly functioning of the markets, consumers or the real economy, in one or more Member States or States or other jurisdiction which are different to the Member State where the benchmark's administrator is located;
Amendment 88 #
Proposal for a regulation
Article 23 – paragraph 1
Article 23 – paragraph 1
1. The administrator shall submit an application for authorisation to the competent authority of the Member State in which the administrator is located. The administrator of a commodity benchmark referred to in Article 3(20) shall submit an application for authorisation to ESMA. For energy pricing benchmarks ACER shall cooperate and exchange information with ESMA.
Amendment 89 #
Proposal for a regulation
Article 25 a (new)
Article 25 a (new)
Article 25 a Binding Mediation 1. ESMA shall establish a mediation mechanism to assist in finding a common view among the competent authorities in the event of any disagreement in relations to this Regulation. 2. Without prejudice to Article 19 (1) of the Regulation (EU) No 1095/2010 of the European Parliament and of the Council establishing a European Supervisory Authority (ESMA) relating to the settlement of disagreements between competent authorities in cross-border situations, setting out the powers of binding mediation, shall apply to all relevant articles of this regulation.
Amendment 90 #
Proposal for a regulation
Article 30 – paragraph 1 – introductory part
Article 30 – paragraph 1 – introductory part
1. In order to fulfil their duties under this Regulation, competent authorities, or ESMA in the case of a commodity benchmark pursuant to Article 3(20) shall have in conformity with national and EU law, at least the following supervisory and investigatory powers:
Amendment 92 #
Proposal for a regulation
Article 30 – paragraph 3
Article 30 – paragraph 3
3. Member States shall ensure that appropriate measures are in place so that competent authorities, or ESMA in the case of a commodity benchmark pursuant to Article 3(20), have all the supervisory and investigatory powers that are necessary to fulfil their duties.
Amendment 93 #
Proposal for a regulation
Article 32 – paragraph 2 a (new)
Article 32 – paragraph 2 a (new)
2 a. This article shall apply mutatis mutandi to ESMA in the case of a commodity benchmark pursuant to Article 3(20).
Amendment 94 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
1. Within 30 working days from the entry into force of the decision referred to in Article 13(1) determining a benchmark as critical benchmark, the competent authorityESMA shall establish a college of competent authorities.
Amendment 132 #
Proposal for a regulation
Recital 1
Recital 1
(1) The pricing of many financial instruments and financial contracts depends on the accuracy and integrity of benchmarks. Cases of manipulation of interest rate benchmarks such as LIBOR and EURIBORStaggering cases of intentional and far-reaching manipulation driven mostly by SIFIs of interest rate benchmarks such as LIBOR and EURIBOR, causing considerable losses to consumers and investors and further shattering the confidence of citizens in the banking sector, as well as allegations that energy, oil and foreign exchange benchmarks have been manipulated, have demonstrated that benchmarks whose setting processes share certain characteristics, such as being subject to conflicts of interest, the use of discretion and weak governance, may bare vulnerable to manipulation. Failures in, or doubts about, the accuracy and integrity of indices used as benchmarks may undermine market confidence, cause losses to consumers and investors and distort the real economy. It is therefore necessary to ensure the accuracy, robustness and integrity of benchmarks and the benchmark setting process.
Amendment 149 #
Proposal for a regulation
Recital 9
Recital 9
(9) The critical determinant of the scope of this Regulation should be whether the output value of the benchmark determines the value of a financial instrument, financial contract or measures the performance of an investment fund. Therefore the scope should not be dependent on the nature of the input data. Benchmarks calculated from economic input data, such as share prices and non- economic number or values such as weather parameters should thus be included. The framework should cover those benchmarks subject to these risks, but should also provide for a proportionate response to the risks that different benchmarks pose. This Regulation should therefore cover all benchmarks which are used to price financial instruments listed or traded on regulated venues.
Amendment 154 #
Proposal for a regulation
Recital 12
Recital 12
(12) All benchmark administrators are potentially subject to conflicts of interest, exercise discretion and may have inadequate governance and control systems in place. Further, as administrators control the benchmark process, requiring authorisation and supervision of administrators is the most effective way of ensuring the integrity of benchmarks, or where a benchmark is not designed to represent transactions and the nature of the benchmark is such that data other than transaction data is used to reflect what the benchmark is designed to measure, provided that in all cases such data is verifiable.
Amendment 156 #
Proposal for a regulation
Recital 16
Recital 16
Amendment 169 #
Proposal for a regulation
Recital 27
Recital 27
(27) Many benchmarks are determined from input data that is provided by regulated venues, energy exchanges and emission allowance auctions. These venues are subject to regulation and supervision that ensures the integrity of the input data, provides for governance requirements and procedures for the notification of breaches. Therefore, provided they are sourced from venues subject to post trade transparency requirements, including a third country market considered as equivalent to a regulated market in the Union, these benchmarks are released from certain obligations in order to avoid dual regulation and because their supervision ensures the integrity of the input data used.
Amendment 174 #
Proposal for a regulation
Recital 29
Recital 29
(29) Different types of benchmark and different benchmark sectors have different characteristics, vulnerabilities and risks. The provisions of this Regulation should be further specified for particular benchmark sectors and types. Interbank interest rate benchmarks are benchmarks that play an important role in the transmission of monetary policy and so it is necessary to specify how these provisions would apply to these benchmarks in this Regulation. Commodity benchmarks are widely used and have sector specific characteristics and so it is necessary to specify how these provisions would apply to these benchmarks in this Regulation. Interbank interest rate benchmarks, commodity benchmarks and foreign exchange benchmarks should be subject to direct supervision by ESMA.
Amendment 179 #
Proposal for a regulation
Recital 30
Recital 30
(30) The failure of certain critical benchmarks may have a significant impact on financial stability, market orderliness or investors and it is therefore necessary that additional requirements apply to ensure the integrity and robustness of these critical benchmarks. Where a benchmark references a significant value of financial instruments it will have such an impact. It is therefore necessary that the Commission determines those benchmarks that reference financial instruments above a certain threshold and should be considered critical benchmarks. or benchmarks with significant adverse impacts, and should be considered critical benchmarks. ESMA should have the lead role in the colleges for critical benchmarks, and the review of this regulation should include an assessment of the feasibility of submitting all critical benchmarks to direct supervision by ESMA.
Amendment 192 #
Proposal for a regulation
Recital 36
Recital 36
(36) In some circumstances a person may provide an index but be unaware that this index is being used as a reference for a financial instrument. This is particularly the case where the users and benchmark administrator are located in different Member States. It is therefore necessary that competent authorities, whenever they become aware of the use of a benchmark in a financial instrument, notify a central coordinating authority such as ESMA, who should notify the administrator.
Amendment 194 #
Proposal for a regulation
Recital 38
Recital 38
(38) For the purpose of detecting breaches of this Regulation, it is necessary for competent authorities and ESMA to be able to access, in accordance with national law, the premises of natural and legal persons in order to seize documents. The access to such premises is necessary when there is reasonable suspicion that documents and other data related to the subject matter of an inspection or investigation exist and may be relevant to prove a breach of this Regulation. Additionally the access to such premises is necessary where: the person to whom a demand for information has already been made fails to comply with it; or where there are reasonable grounds for believing that if a demand were to be made, it would not be complied with, or that the documents or information to which the information requirement relates, would be removed, tampered with or destroyed. If prior authorisation is needed from the judicial authority of the Member State concerned, in accordance with national law, such power for access into premises shall be used after having obtained that prior judicial authorisation.
Amendment 200 #
Proposal for a regulation
Recital 47
Recital 47
(47) Critical benchmarks may involve contributors, administrators and users in more than one Member State. Thus, the cessation of the provision of such a benchmark or any events that may significantly undermine its integrity may have an impact in more than one Member State meaning that the supervision of such a benchmark by the competent authority of the Member State in which it is located alone will not be efficient and effective in terms of addressing the risks that the critical benchmark poses. To ensure the effective exchange of supervisory information among competent authorities, coordination of their activities and supervisory measures, colleges of competent authorities with ESMA in the lead should be formed. The activities of the colleges should contribute to the harmonised application of rules under this Regulation and to the convergence of supervisory practices. ESMA's legally binding mediation is a key element of the achievement of coordination, supervisory consistency and convergence of supervisory practices. Benchmarks may reference financial instruments and financial contracts that have a long duration. In certain cases such benchmarks may no longer be permitted to be provided once this Regulation comes into effect because they have characteristics that cannot be adjusted to conform to the requirements of this Regulation. However, prohibiting the continued provision of such a benchmark may result in the termination or frustration of the financial instruments or financial contracts and so harm investors. It is therefore necessary to make provision to allow for the continued provision of such benchmarks for a transitional period.
Amendment 201 #
Proposal for a regulation
Recital 48 a (new)
Recital 48 a (new)
(48 a) Competent authorities or ESMA in case of an interbank interest rate and foreign exchange rate benchmarks should monitor the use of benchmarks in contracts in order to ensure that such use is appropriate and that users do not have to bear disproportional basis risks.
Amendment 206 #
Proposal for a regulation
Article 2 – paragraph 2
Article 2 – paragraph 2
Amendment 216 #
Proposal for a regulation
Article 2 – paragraph 3
Article 2 – paragraph 3
Amendment 218 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 – introductory part
Article 3 – paragraph 1 – point 1 – introductory part
(1) ‘'index’' means any rate or figure:
Amendment 220 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point a
Article 3 – paragraph 1 – point 1 – point a
(a) that is published or made available to the public, or made available to a benchmark user;
Amendment 223 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point c
Article 3 – paragraph 1 – point 1 – point c
(c) where this determination is made on the basis of the value of one or more underlying assets, or prices, including estimated prices, actual or estimated interest rates, or other values or surveys.
Amendment 241 #
Proposal for a regulation
Article 3 – paragraph 1 – point 11
Article 3 – paragraph 1 – point 11
(11) ‘'regulated data’' means input data that is sourced from venues subject to mandatory post trade transparency requirements and that is contributed directly from a trading venue as defined in point (25) of paragraph 1 of Article 2 of [MIFIR] or approved publication arrangement as defined in point (18) of paragraph 1 of Article 2 of [MIFIR ] or an approved reporting arrangement as defined in point (20) of paragraph 1 of Article 2 of [MIFIR] in accordance with mandatory post trade data requirements or an electricity exchange as referred to in point (j) of paragraph 1 of Article 37 of Directive 2009/72/EC19 or a natural gas exchange as referred to in point (j) of paragraph 1 of Article 41 of Directive 2009/73/EC20 or an auction platform referred to in Article 26 or in Article 30 of Regulation (EU) No 1031/2010 of the European Parliament and of the Council; or from a third country market considered as equivalent to a regulated market in accordance with Article 19(6) of Directive 2004/39/EC; __________________ 19 OJ L 211, 14.8.2009, p. 55. 20 OJ L 9, 14.8.2009, p. 112.
Amendment 248 #
Proposal for a regulation
Recital 1
Recital 1
(1) The pricing of many financial instruments and financial contracts depends on the accuracy and integrity of benchmarks. Cases of manipulation of interest rate benchmarks such as LIBOR and EURIBORStaggering cases of intentional and far-reaching manipulation driven mostly by Systemically Important Financial Institutions of interest rate benchmarks such as LIBOR and EURIBOR and of foreign exchange benchmarks, causing considerable losses to consumers and investors and further shattering the confidence of citizens in the banking sector, as well as serious allegations that energy, oil and foreign exchange and oil benchmarks have been manipulated, have demonstrated that benchmarks whose setting processes share certain characteristics, such as being subject to conflicts of interest, the use of discretion and weak governance, may bare vulnerable to manipulation. Failures in, or doubts about, the accuracy and integrity of indices used as benchmarks may undermine market confidence, cause losses to consumers and investors and distort the real economy. It is therefore necessary to ensure the accuracy, robustness and integrity of benchmarks and the benchmark setting process.
Amendment 250 #
Proposal for a regulation
Article 3 – paragraph 1 – point 13
Article 3 – paragraph 1 – point 13
(13) ‘'financial instrument’' means any of the instruments listed in Section C of Annex I to Directive 2004/39/EC for which a request for admission to trading on a trading venue has been made or which are traded on a trading venue;
Amendment 253 #
Proposal for a regulation
Recital 12
Recital 12
(12) All benchmark administrators are potentially subject to conflicts of interest, exercise discretion and may have inadequate governance and control systems in place. Further, as administrators control the benchmark process, requiring authorisation and supervision of administrators is the most effective way of ensuring the integrity of benchmarks, or where a benchmark is not designed to represent transactions and the nature of the benchmark is such that data other than transaction data is used to reflect what the benchmark is designed to measure, provided that in all cases such data is verifiable.
Amendment 255 #
Proposal for a regulation
Recital 16
Recital 16
Amendment 257 #
Proposal for a regulation
Article 3 – paragraph 1 – point 19 a (new)
Article 3 – paragraph 1 – point 19 a (new)
(19 a) 'Foreign exchange rate benchmark' means a benchmark whose value is determined in relation to the price, expressed in one currency, of one or a basket of other currencies;
Amendment 258 #
Proposal for a regulation
Article 3 – paragraph 1 – point 19 b (new)
Article 3 – paragraph 1 – point 19 b (new)
(19 b) basis risk related to a financial contract is the risk that the value of this contract differs from the underlying economic reality that this contract represents. An appropriate benchmark reduces basis risk related to a given financial contract to the minimum.
Amendment 260 #
Proposal for a regulation
Article 3 – paragraph 1 – point 20
Article 3 – paragraph 1 – point 20
(20) ‘'commodity benchmark’' means a benchmark where the underlying asset for the purposes of point (1)(c) of this Article is a commodity within the meaning of point (2) of Article 2 of Commission Regulation (EC) No 1287/200627; Emission allowances as defined in point (11) of Section C of Annex I of [MiFID] shall not be considered commodities for the purpose of this Regulation; __________________ 27[1]; ; __________________ 27 OJ L 241, 2.9.2006, p. 1. OJ L 241, 2.9.2006, p. 1.
Amendment 261 #
Proposal for a regulation
Recital 27
Recital 27
(27) Many benchmarks are determined from input data that is provided by regulated venues, energy exchanges and emission allowance auctions. These venues are subject to regulation and supervision that ensures the integrity of the input data, provides for governance requirements and procedures for the notification of breaches. Therefore, provided they are sourced from venues subject to post trade transparency requirements, including a third country market considered as equivalent to a regulated market in the Union, these benchmarks are released from certain obligations in order to avoid dual regulation and because their supervision ensures the integrity of the input data used.
Amendment 262 #
Proposal for a regulation
Article 3 – paragraph 1 – point 21
Article 3 – paragraph 1 – point 21
(21) ‘'critical benchmark’' means a benchmark, the majority of contributors to which are super with reference financial instruments having a notional value of at least 100 billion euro; or a benchmark that in the event it were to be provided or were provisded using an unrepresentiaties and that reference financial instruments having a notional value of at least 500 billion euro; ve set of contributors or input data, this would have a significant adverse impact on financial stability, the orderly functioning of the markets, consumers or the real economy, in one or more Member States or States or other jurisdiction which are different to the Member State where the benchmark's administrator is located;
Amendment 264 #
Proposal for a regulation
Recital 29
Recital 29
(29) Different types of benchmark and different benchmark sectors have different characteristics, vulnerabilities and risks. The provisions of this Regulation should be further specified for particular benchmark sectors and types. Interbank interest rate benchmarks are benchmarks that play an important role in the transmission of monetary policy and so it is necessary to specify how these provisions would apply to these benchmarks in this Regulation. Commodity benchmarks are widely used and have sector specific characteristics and so it is necessary to specify how these provisions would apply to these benchmarks in this Regulation. ESMA should be empowered to supervise, delegate supervision and revoke delegated supervision for Interbank interest rate benchmarks, commodity benchmarks and foreign exchange benchmarks as well as all critical benchmarks.
Amendment 277 #
Proposal for a regulation
Recital 36
Recital 36
(36) In some circumstances a person may provide an index but be unaware that this index is being used as a reference for a financial instrument. This is particularly the case where the users and benchmark administrator are located in different Member States. It is therefore necessary that competent authorities, whenever they become aware of the use of a benchmark in a financial instrument, notify a central coordinating authority such as ESMA, who should notify the administrator.
Amendment 280 #
Proposal for a regulation
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 280 #
Proposal for a regulation
Recital 38
Recital 38
(38) For the purpose of detecting breaches of this Regulation, it is necessary for competent authorities and ESMA to be able to access, in accordance with national law, the premises of natural and legal persons in order to seize documents. The access to such premises is necessary when there is reasonable suspicion that documents and other data related to the subject matter of an inspection or investigation exist and may be relevant to prove a breach of this Regulation. Additionally the access to such premises is necessary where: the person to whom a demand for information has already been made fails to comply with it; or where there are reasonable grounds for believing that if a demand were to be made, it would not be complied with, or that the documents or information to which the information requirement relates, would be removed, tampered with or destroyed. If prior authorisation is needed from the judicial authority of the Member State concerned, in accordance with national law, such power for access into premises shall be used after having obtained that prior judicial authorisation.
Amendment 285 #
Proposal for a regulation
Recital 47
Recital 47
(47) Critical benchmarks may involve contributors, administrators and users in more than one Member State. Thus, the cessation of the provision of such a benchmark or any events that may significantly undermine its integrity may have an impact in more than one Member State meaning that the supervision of such a benchmark by the competent authority of the Member State in which it is located alone will not be efficient and effective in terms of addressing the risks that the critical benchmark poses. To ensure the effective exchange of supervisory information among competent authorities, coordination of their activities and supervisory measures, colleges of competent authorities with ESMA in the lead should be formed. The activities of the colleges should contribute to the harmonised application of rules under this Regulation and to the convergence of supervisory practices. ESMA's legally binding mediation is a key element of the achievement of coordination, supervisory consistency and convergence of supervisory practices. Benchmarks may reference financial instruments and financial contracts that have a long duration. In certain cases such benchmarks may no longer be permitted to be provided once this Regulation comes into effect because they have characteristics that cannot be adjusted to conform to the requirements of this Regulation. However, prohibiting the continued provision of such a benchmark may result in the termination or frustration of the financial instruments or financial contracts and so harm investors. It is therefore necessary to make provision to allow for the continued provision of such benchmarks for a transitional period.
Amendment 293 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. Where outsourcing takes place,: - an administrator shall ensure that the outsourcing requirements set out in Section B of Annex 1 are satisfied.; - a contributor shall define and implement an internal control process to guarantee the effective availability of data;
Amendment 295 #
Proposal for a regulation
Article 2 – paragraph 2
Article 2 – paragraph 2
Amendment 302 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point a – paragraph 1 a (new)
Article 7 – paragraph 1 – subparagraph 1 – point a – paragraph 1 a (new)
An administrator may seek authorisation from the relevant competent authority to use data other than transaction data for a benchmark that is not designed to represent transactions and where the nature of the benchmark is such that data other than transaction data is used to reflect what the benchmark is designed to measure, provided that such data is verifiable.
Amendment 306 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point c
Article 7 – paragraph 1 – subparagraph 1 – point c
(c) Where the input data of a benchmark is not transaction data and a contributor is a party to more than 50% of value of transactions in the market which that the benchmark intends to measure, the administrator shall verify that the input data represents a market subject to competitive supply and demand forces. Where the administrator finds that the input data does not represent a market subject to competitive supply and demand forces, it shall either change the input data, the contributors or the methodology to ensure that the input data represents a market subject to competitive supply and demand forces, or cease to provide that benchmark (‘Market impact’). The administrator shall communicate to the relevant competent authority the results of the verification process referred to in this subparagraph.
Amendment 314 #
Proposal for a regulation
Article 2 – paragraph 3
Article 2 – paragraph 3
Amendment 320 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 – introductory part
Article 3 – paragraph 1 – point 1 – introductory part
(1) ‘'index’' means any rate or figure:
Amendment 321 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point a
Article 3 – paragraph 1 – point 1 – point a
(a) that is published or made available to the public, or made available to a benchmark user;
Amendment 322 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point c
Article 3 – paragraph 1 – point 1 – point c
(c) where this determination is made on the basis of the value of one or more underlying assets, or prices, including estimated prices, actual or estimated interest rates, or other values or surveys.
Amendment 338 #
Proposal for a regulation
Article 3 – paragraph 1 – point 11
Article 3 – paragraph 1 – point 11
(11) ‘'regulated data’' means input data that is sourced from venues subject to mandatory post trade transparency requirements and that is contributed directly from a trading venue as defined in point (25) of paragraph 1 of Article 2 of [MIFIR] or approved publication arrangement as defined in point (18) of paragraph 1 of Article 2 of [MIFIR ] or an approved reporting arrangement as defined in point (20) of paragraph 1 of Article 2 of [MIFIR] in accordance with mandatory post trade data requirements or an electricity exchange as referred to in point (j) of paragraph 1 of Article 37 of Directive 2009/72/EC19 or a natural gas exchange as referred to in point (j) of paragraph 1 of Article 41 of Directive 2009/73/EC20 or an auction platform referred to in Article 26 or in Article 30 of Regulation (EU) No 1031/2010 of the European Parliament and of the Council; or from a third country market considered as equivalent to a regulated market in accordance with Article 19(6) of Directive 2004/39/EC; __________________ 19 OJ L 211, 14.8.2009, p. 55. 20 OJ L 9, 14.8.2009, p. 112.
Amendment 340 #
Proposal for a regulation
Article 3 – paragraph 1 – point 13
Article 3 – paragraph 1 – point 13
(13) ‘'financial instrument’' means any of the instruments listed in Section C of Annex I to Directive 2004/39/EC for which a request for admission to trading on a trading venue has been made or which are traded on a trading venue;
Amendment 345 #
Proposal for a regulation
Article 3 – paragraph 1 – point 19 a (new)
Article 3 – paragraph 1 – point 19 a (new)
Amendment 346 #
Proposal for a regulation
Article 3 – paragraph 1 – point 20
Article 3 – paragraph 1 – point 20
(20) ‘commodity benchmark’ means a benchmark where the underlying asset for the purposes of point (1)(c) of this Article is a commodity within the meaning of point (2) of Article 2 of Commission Regulation (EC) No 1287/200627 ; Emission allowances as defined in point (11) of Section C of Annex I of [MiFID] shall not be considered commodities for the purpose of this Regulation; __________________ 27 OJ L 241, 2.9.2006, p. 1.
Amendment 352 #
Proposal for a regulation
Article 3 – paragraph 1 – point 21
Article 3 – paragraph 1 – point 21
(21) ‘'critical benchmark’' means a benchmark, the majority of contributors to which are super with reference financial instruments having a notional value of at least 100 billion euro; or a benchmark that in the event it were to be provided or were provisded using an unrepresentiaties and that reference financial instruments having a notional value of at least 500 billion euro; ve set of contributors or input data, this would have a significant adverse impact on financial stability, the orderly functioning of the markets, consumers or the real economy, in one or more Member States or States or other jurisdiction which are different to the Member State where the benchmark's administrator is located;
Amendment 360 #
Proposal for a regulation
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 376 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. Where outsourcing takes place,: - an administrator shall ensure that the outsourcing requirements set out in Section B of Annex 1I are satisfied; - a contributor shall define and implement an internal control process to guarantee the effective availability of data.
Amendment 384 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point a – paragraph 2 a (new)
Article 7 – paragraph 1 – subparagraph 1 – point a – paragraph 2 a (new)
An administrator may seek authorisation from the relevant competent authority to use data other than transaction data for a benchmark that is not designed to represent transactions and where the nature of the benchmark is such that data other than transaction data is used to reflect what the benchmark is designed to measure, provided that such data is verifiable.
Amendment 389 #
Proposal for a regulation
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Within 5 working days from the date of application of the decision including a critical benchmark in the list referred to in paragraph 1of this Article, the administrator of that critical benchmark shall notify the code of conduct to the relevant competent authority. The relevant competent authority and ESMA. ESMA shall verify within 30 days whether the content of the code of conduct complies with the requirements of this Regulation. In case the relevant competent authorityESMA finds elements which do not comply with the requirements of this Regulation, it shall inform the administrator. The administrator shall adjust the code of conduct to ensure that it complies with the requirements of this Regulation within 30 days of such a request.
Amendment 389 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point c
Article 7 – paragraph 1 – subparagraph 1 – point c
(c) Where the input data of a benchmark is not transaction data and a contributor is a party to more than 50% of value of transactions in the market which that the benchmark intends to measure, the administrator shall verify that the input data represents a market subject to competitive supply and demand forces. Where the administrator finds that the input data does not represent a market subject to competitive supply and demand forces, it shall either change the input data, the contributors or the methodology to ensure that the input data represents a market subject to competitive supply and demand forces, or cease to provide that benchmark (‘'Market impact’'). The administrator shall communicate to the relevant competent authority the results of the verification process referred to in this subparagraph.
Amendment 415 #
Proposal for a regulation
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
1. An administrator shall publish and update at least annually a benchmark statement for each benchmark which:
Amendment 428 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. An administrator shall publish the input dataand update at least annually the input data, including the names of the contributors, used to determine the benchmark immediately after publication of the benchmark except where publication would have serious adverse consequences for the contributors or adversely affect the reliability or integrity of the benchmark. In such cases publication may be delayed for a period that significantly diminishesof up to one month. Any such delay shall be notified and justified to these consequencesmpetent authority. Any personal data included in input data shall not be published.
Amendment 431 #
Proposal for a regulation
Article 12 a (new)
Article 12 a (new)
Article 12 a Supervision of critical benchmarks by ESMA 1. ESMA shall be empowered to supervise critical benchmarks. It may delegate some or all of the responsibility for supervision to Member State competent authorities when appropriate, but shall be empowered to revoke the delegation, in order to assume direct supervision, where it is deemed appropriate such as for reasons of resource, supervisory consistency, or at the request of the Member State. 2. When deciding to delegate some or all of the responsibility for supervision concerning critical benchmarks to a Member State competent authority, ESMA may take into account, amongst other things: (i) whether there is a high concentration of contributors that are located or supervised within the Member State concerned; (ii) whether the supervision in the Member State is IOSCO compliant; (iii) and, in respect of benchmarks compiled from regulated data, whether there is a need for provisions on mandatory contributions pursuant to Article 14. 3. When the ESMA exercises direct supervision of a critical benchmark, it shall charge fees to the administrators. Those fees shall fully cover ESMA's necessary expenditure relating to the registration and supervision.
Amendment 434 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
1. An administrator shall publish a procedure that shall also be integrated into the code of conduct issued by the administrator concerning the actions to be taken by the administrator in the event of changes to or the cessation of a benchmark.
Amendment 436 #
Proposal for a regulation
Article 17 a (new)
Article 17 a (new)
Article 17 a Appropriateness of a Benchmark The administrator shall ensure the accuracy of the benchmark in relation to the description of the market or economic reality that the benchmark intends to measure and that is subject to the benchmark statement requirements set out in Section F of Annex I. ESMA shall publish guidelines in accordance with Article 16 of regulation (EU) No 1095/2010 six months after the entry into force of the regulation setting out the definition of appropriateness in terms of levels of basis risk as defined in Article 3 para 19 new, including the minimum level of correlation with the underlying economic reality of a contract required for a benchmark to be appropriate as a reference. The Commission shall publish a report by June 2015 analysing existing practices with view to the level of correlation with the underlying economic reality of a contract, including but not limited to mortgage contracts, in relation to the use of benchmarks such as interbank interest rate and foreign exchange benchmarks.
Amendment 443 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Where a supervised entity intends to enter into a financial contract with a consumer or retail client, that supervised entity shall first obtain the necessary information regarding the consumer’s or retail clients’ knowledge and experience with respect to the benchmark, his financial situation and his objectives in respect of that financial contract, and the benchmark statement published in accordance with Article 15 and shall assess whether referencing the financial contract to that benchmark is suitable for him.
Amendment 445 #
Proposal for a regulation
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Within 5 working days from the date of application of the decision including a critical benchmark in the list referred to in paragraph 1of this Article, the administrator of that critical benchmark shall notify the code of conduct to the relevant competent authority. The relevant competent authority and ESMA. ESMA shall verify within 30 days whether the content of the code of conduct complies with the requirements of this Regulation. In case the relevant competent authorityESMA finds elements which do not comply with the requirements of this Regulation, it shall inform the administrator. The administrator shall adjust the code of conduct to ensure that it complies with the requirements of this Regulation within 30 days of such a request.
Amendment 448 #
Proposal for a regulation
Article 18 – paragraph 2
Article 18 – paragraph 2
2. Where the supervised entity considers, on the basis of the assessment under paragraph 1, that the benchmark is not suitable for the consumer or the retail client, the supervised entity shall warn the consumer or retail client in writing with reasons.
Amendment 497 #
Proposal for a regulation
Article 23 – paragraph 1
Article 23 – paragraph 1
1. The administrator shall submit an application for authorisation to the competent authority of the Member State in which the administrator is located. The administrator of an interbank interest rate benchmark pursuant to article 3 (19), or a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20) shall submit an application for authorisation to ESMA.
Amendment 499 #
Proposal for a regulation
Article 23 – paragraph 4
Article 23 – paragraph 4
4. Within 15 working days of receipt of the application, the relevant competent authority, or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20) shall assess whether the application is complete and shall notify the applicant accordingly. If the application is incomplete, then the applicant shall submit the additional information required by the relevant competent authority. or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20).
Amendment 500 #
Proposal for a regulation
Article 23 – paragraph 5
Article 23 – paragraph 5
5. Within 45 working days of receipt of a complete application, the relevant competent authority, or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20) shall, examine the application and adopt a decision to authorise or refuse authorisation of the applicant administrator. Within five working days of the adoption of a decision whether to authorise or refuse authorisation, the competent authority shall notify it to the administrator concerned. Where the competent authority, or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20) notify it to the administrator concerned. Where the competent authority, or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20) refuses to authorise the applicant administrator, it shall give reasons for its decision.
Amendment 501 #
Proposal for a regulation
Article 24 – paragraph 1 – introductory part
Article 24 – paragraph 1 – introductory part
1. The competent authority, or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20), shall withdraw or suspend the authorisation of an administrator where the administrator:
Amendment 505 #
Proposal for a regulation
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
1. An administrator shall publish and update at least annually a benchmark statement for each benchmark which:
Amendment 508 #
Proposal for a regulation
Article 25 – title
Article 25 – title
Amendment 509 #
Proposal for a regulation
Article 25 – paragraph 1
Article 25 – paragraph 1
1. Whenever a competent authority becomes aware that Before an index is used by a supervised entity as a benchmark in the Union, the entity shall verify that the provider of the relevant index is being used as a reference to a financial instrument, or that a request for admission to trading has been made to a trading venue supervised by that competent authority in respect of a financial instrument that references an index, that competent authority shall notify ESMA within 10 working daysreferenced on the website of ESMA as an authorised or registered administrator in accordance with this Regulation. If this is not the case, the entity shall notify the provider of the relevant index providing full details of its intended use and requesting the provider of the index to confirm that it consents to the intended use of the index within 10 working days. In such circumstances, the index cannot be used by the entity as a benchmark in the Union without the prior consent of the provider of the index. In case of conflict, the national competent authority and ESMA shall be notified.
Amendment 511 #
Proposal for a regulation
Article 25 – paragraph 2
Article 25 – paragraph 2
Amendment 513 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. An administrator shall publish the input dataand update at least annually the input data, including the names of the contributors, used to determine the benchmark immediately after publication of the benchmark except where publication would have serious adverse consequences for the contributors or adversely affect the reliability or integrity of the benchmark. In such cases publication may be delayed for a period that significantly diminishesof up to one month. Any such delay shall be notified and justified to these consequencesmpetent authority. Any personal data included in input data shall not be published.
Amendment 514 #
Proposal for a regulation
Article 25 – paragraph 3
Article 25 – paragraph 3
Amendment 515 #
Proposal for a regulation
Article 25 – paragraph 4 – subparagraph 1
Article 25 – paragraph 4 – subparagraph 1
Amendment 516 #
Proposal for a regulation
Article 25 – paragraph 4 – subparagraph 2
Article 25 – paragraph 4 – subparagraph 2
Amendment 517 #
Proposal for a regulation
Article 25 – paragraph 4 – subparagraph 3
Article 25 – paragraph 4 – subparagraph 3
Amendment 518 #
Proposal for a regulation
Article 25 – paragraph 4 – subparagraph 4
Article 25 – paragraph 4 – subparagraph 4
Amendment 519 #
Proposal for a regulation
Article 25 a (new)
Article 25 a (new)
Article 25 a Binding Mediation 1. ESMA shall establish a mediation mechanism to assist in finding a common view among the competent authorities in the event of any disagreement in relating to this regulation. 2. Without prejudice to paragraph 1, Article 19 of the REGULATION (EU) No 1095/2010 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a European Supervisory Authority (ESMA) relating to the settlement of disagreements between competent authorities in cross-border situations, setting out the powers of binding mediation, shall apply to all relevant articles of this regulation
Amendment 519 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
1. An administrator shall publish a procedure that shall also be integrated into the code of conduct issued by the administrator concerning the actions to be taken by the administrator in the event of changes to or the cessation of a benchmark.
Amendment 523 #
Proposal for a regulation
Article 27 a (new)
Article 27 a (new)
Amendment 525 #
Proposal for a regulation
Article 17 a (new)
Article 17 a (new)
Article 17a Appropriateness of a Benchmark The administrator shall ensure the accuracy of the benchmark in relation to the description of the market or economic reality that the benchmark intends to measure and that is subject to the benchmark statement requirements set out in Section F of Annex I. ESMA shall publish guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010 six months after the entry into force of the regulation setting out the definition of appropriateness in terms of levels of basis risk as defined in Article 3 para 19 new, including the minimum level of correlation with the underlying economic reality of a contract required for a benchmark to be appropriate as a reference. The Commission shall publish a report by December 2015 analysing existing practices with view to the level of correlation with the underlying economic reality of a contract, including but not limited to mortgage contracts, in relation to the use of benchmarks such as interbank interest rate and foreign exchange benchmarks.
Amendment 528 #
Proposal for a regulation
Article 30 – paragraph 1 – introductory part
Article 30 – paragraph 1 – introductory part
1. In order to fulfil their duties under this Regulation, competent authorities, or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20) shall have in conformity with national and EU law, at least the following supervisory and investigatory powers:
Amendment 530 #
Proposal for a regulation
Article 30 – paragraph 2 – subparagraph 1 – introductory part
Article 30 – paragraph 2 – subparagraph 1 – introductory part
The competent authorities, or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20), shall exercise their functions and powers, referred to in paragraph 1, in any of the following ways:
Amendment 530 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Where a supervised entity intends to enter into a financial contract with a consumer or retail client, that supervised entity shall first obtain the necessary information regarding the consumer's or retail clients' knowledge and experience with respect to the benchmark, his financial situation and his objectives in respect of that financial contract, and the benchmark statement published in accordance with Article 15 and shall assess whether referencing the financial contract to that benchmark is suitable for him.
Amendment 532 #
Proposal for a regulation
Article 30 – paragraph 2 – subparagraph 2
Article 30 – paragraph 2 – subparagraph 2
For the exercise of those powers, competent authorities, or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20), shall have in place adequate and effective safeguards in regard to the right of defence and fundamental rights.
Amendment 533 #
Proposal for a regulation
Article 30 – paragraph 3
Article 30 – paragraph 3
3. Member States shall ensure that appropriate measures are in place so that competent authorities, or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20), have all the supervisory and investigatory powers that are necessary to fulfil their duties.
Amendment 533 #
Proposal for a regulation
Article 18 – paragraph 2
Article 18 – paragraph 2
2. Where the supervised entity considers, on the basis of the assessment under paragraph 1, that the benchmark is not suitable for the consumer or the retail client, the supervised entity shall warn the consumer or retail client in writing with reasons.
Amendment 538 #
Proposal for a regulation
Article 31 – paragraph 4 a (new)
Article 31 – paragraph 4 a (new)
4a. This article shall apply mutatis mutandi to ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20).
Amendment 541 #
Proposal for a regulation
Article 32 – paragraph 2 a (new)
Article 32 – paragraph 2 a (new)
2a. This article shall apply mutatis mutandi to ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20).
Amendment 542 #
Proposal for a regulation
Article 33 – paragraph 4 a (new)
Article 33 – paragraph 4 a (new)
4a. This article shall apply mutatis mutandi to ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20).
Amendment 544 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
1. Within 30 working days from the entry into force of the decision referred to in Article 13(1) determining a benchmark as critical benchmark, the competent authorityESMA shall establish a college of competent authorities.
Amendment 548 #
Proposal for a regulation
Article 34 – paragraph 3 – subparagraph 2
Article 34 – paragraph 3 – subparagraph 2
Where a competent authority intends to become a member of a college pursuant to the first subparagraph, it shall submit a request to the competent authority of the administratorESMA containing evidence that the requirements of that provision are fulfilled. The relevant competent authority of the administratorESMA shall consider the request and notify the requesting authority within 20 working days of receipt of the request whether or not it considers those requirements to be fulfilled. Where it considers those requirements not to be fulfilled, the requesting authority may refer the matter to ESMA in accordance with paragraph 10.
Amendment 550 #
Proposal for a regulation
Article 34 – paragraph 4
Article 34 – paragraph 4
4. ESMA shall contribute to promoting and monitoringlead the college and ensure the efficient, effective and consistent functioning of colleges of supervisors referred to in this Article in accordance with Article 21 of Regulation (EU) No 1095/2010. To that end, ESMA shall participate as appropriate and shall be considered to be a competent authority for that purpose.
Amendment 551 #
Proposal for a regulation
Article 34 – paragraph 5
Article 34 – paragraph 5
5. The competent authority of the administratorESMA shall chair the meetings of the college, coordinate the actions of the college and ensure efficient exchange of information among members of the college.
Amendment 553 #
Proposal for a regulation
Article 34 – paragraph 6 – subparagraph 1 – introductory part
Article 34 – paragraph 6 – subparagraph 1 – introductory part
Amendment 555 #
Proposal for a regulation
Article 34 – paragraph 6 – subparagraph 2
Article 34 – paragraph 6 – subparagraph 2
Where the administrator provides more than one benchmark, the competent authority of the administratorESMA may establish a single college in respect of all the benchmarks provided by that administrator.
Amendment 556 #
Proposal for a regulation
Article 20 – paragraph 2 – subparagraph 1 – point b a (new)
Article 20 – paragraph 2 – subparagraph 1 – point b a (new)
(ba) - there is effective exchange of information with foreign tax authorities, - there is no lack of transparency in legislative, judicial or administrative provisions, - there is a requirement for a substantive local presence, or - the third country does not act as an offshore financial centre; - the third country does not provide for tax measures which entail no or nominal taxes or that no advantages are granted even without any real economic activity and substantial economic presence within the third country offering such tax advantages; - that the third country is not listed as a Non-Cooperative Country and Territory by FATF; - that the third country fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements.
Amendment 558 #
Proposal for a regulation
Article 34 – paragraph 8 – subparagraph 1
Article 34 – paragraph 8 – subparagraph 1
Before taking any measures referred to Article 14, 23, 24 and 31 the competent authority of the administratorall members of the college shall be consult the members of the colleged. The members of the college shall do everything reasonable within their power to reach an agreement.
Amendment 560 #
Proposal for a regulation
Article 34 – paragraph 8 – subparagraph 2
Article 34 – paragraph 8 – subparagraph 2
Any decision of the competent authority of the administratorllege to take such measures shall take account of the impact on the other competent authorities and their respective Member States, in particular the potential impact on the stability of the financial system in any other Member States concerned.
Amendment 562 #
Proposal for a regulation
Article 34 – paragraph 9
Article 34 – paragraph 9
9. In the absence of agreement between the members of the college on whether to take any measures referred to in paragraph 8, within 15 working days after the matter was notified to the college, the competent authority of the administratorESMA may adopt a decision. Any deviation of that decision from the opinions expressed by the other members of the college and, where appropriate, ESMA shall be fully reasoned. The competent authority of the administratorshall be fully reasoned. ESMA shall notify its decision, without undue delay, to the college and ESMA.
Amendment 565 #
Proposal for a regulation
Article 34 – paragraph 10 – subparagraph 1 – point b
Article 34 – paragraph 10 – subparagraph 1 – point b
Amendment 576 #
Proposal for a regulation
Article 23 – paragraph 1
Article 23 – paragraph 1
1. The administrator shall submit an application for authorisation to the competent authority of the Member State in which the administrator is located. The administrator of an interbank interest rate benchmark or a foreign exchange rate benchmark [Article 3, point 19a], or a commodity benchmark shall submit an application for authorisation to ESMA.
Amendment 578 #
Proposal for a regulation
Article 40 – paragraph 1 – introductory part
Article 40 – paragraph 1 – introductory part
By 1 July 20186, the Commission shall review and report to the European Parliament and the Council on this Regulation and in particular:
Amendment 579 #
Proposal for a regulation
Article 40 – paragraph 1 – point b
Article 40 – paragraph 1 – point b
(b) the effectiveness of the supervisory regime in Title VI and, the colleges under Article 34, ESMA in the case of interbank interest rate benchmark pursuant to article 3 (19), or a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20) and the appropriateness of supervision of certainall critical benchmarks by a Union bodyESMA ; and
Amendment 580 #
Proposal for a regulation
Article 40 – paragraph 1 – point b a (new)
Article 40 – paragraph 1 – point b a (new)
(ba) the rules governing the appropriateness of the use of a benchmark in Article 17a, taking account the findings of the report to be published in accordance with article 17a subparagraph 3, and
Amendment 590 #
Proposal for a regulation
Article 23 – paragraph 4
Article 23 – paragraph 4
4. Within 15 working days of receipt of the application, the relevant competent authority, or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20) shall assess whether the application is complete and shall notify the applicant accordingly. If the application is incomplete, then the applicant shall submit the additional information required by the relevant competent authority or ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20).
Amendment 593 #
Proposal for a regulation
Annex 1 – section 1 – part I – point 8 a (new)
Annex 1 – section 1 – part I – point 8 a (new)
8a. An Administrator shall develop and maintain robust procedures regarding its oversight function, which shall be made available to the relevant competent authorities. The main features of the procedures shall include: (a) the terms of reference of the oversight function; (b) criteria to select members of the oversight function; (c) the summary details of membership of any board or committee charged with the oversight function, along with any declarations of conflicts of interest and processes for election, nomination or removal and replacement of committee members;
Amendment 593 #
Proposal for a regulation
Article 23 – paragraph 5
Article 23 – paragraph 5
5. Within 415 working days of receipt of a complethe application, the relevant competent authority shall, exam, or ESMA ine the application and adopt a decision to authorise or refuse authorisation of the applicant administrator. Within five working days of the adoption of a decision whether to authorise or refuse authorisation, the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20) and all critical benchmarks shall assess whether the application is complete and shall notify the applicant accordingly. If the application is incompletent authority shall notify , then the applicant shall submit to the administrator concerned. Wditional information required by the re thelevant competent authority refuses to authorise the applicant administrator, it shall give reasons for its decisionor ESMA in the case of an interbank interest rate benchmark pursuant to article 3 (19), a foreign exchange benchmark pursuant to article 3 (19new), or a commodity benchmark pursuant to article 3(20).
Amendment 594 #
Proposal for a regulation
Annex 1 – section 1 – part II – point 9 – point a
Annex 1 – section 1 – part II – point 9 – point a
(a) reviewing at least annually the benchmark’s definition and methodology;
Amendment 595 #
Proposal for a regulation
Annex 1 – section 1 – part II – point 9 – point f
Annex 1 – section 1 – part II – point 9 – point f
(f) assessing internal and external audits or reviews, and monitoring the implementation of identified actionremedial actions highlighted in the results of these audits;
Amendment 597 #
Proposal for a regulation
Annex 1 – section 1 – part II – point 10 – point a
Annex 1 – section 1 – part II – point 10 – point a
(a) where the administrator is owned or controlled by contributors or users, a separate board or committee, whose composition ensures its independence and the absence of conflicts of interest. Where the administrator is owned or controlled by contributors, a majorityt least half of the members of the committee shouldall not be contributors. Where the administrator is owned or controlled by users, a majorityt least half of the members of the committee shouldall not be users;
Amendment 600 #
Proposal for a regulation
Annex 1 – section 1 – part II – point 10 – point c
Annex 1 – section 1 – part II – point 10 – point c
(c) where the administrator is able to demonstrate thato ESMA and the relevant competent authorities that[GD1] in view of the nature, scale and complexity of its provision of the benchmark, and the risk and impact of the benchmark, the requirements under points a and b are not proportionate, a natural person may provide the function of oversight officer. The oversight officer must not be involved in the provision of any benchmark they oversee.
Amendment 602 #
Proposal for a regulation
Article 24 – paragraph 1 – introductory part
Article 24 – paragraph 1 – introductory part
1. The competent authority, or ESMA in the case of an interbank interest rate benchmark, a foreign exchange rate benchmark [Article 3, point 19a], a commodity benchmark or critical benchmarks, shall withdraw or suspend the authorisation of an administrator where the administrator:
Amendment 603 #
Proposal for a regulation
Annex 1 – section 1 – part III – point 12 – introductory part
Annex 1 – section 1 – part III – point 12 – introductory part
12. An administrator shall ensure that there is an appropriate control framework for the provision of the benchmark. The control framework shouldall be proportionate to the level of conflicts identified, the extent of discretion in the benchmark process and the nature of benchmark input data, and include:
Amendment 604 #
Proposal for a regulation
Annex 1 – section 1 – part III – point 12 a (new)
Annex 1 – section 1 – part III – point 12 a (new)
12a. The relevant competent authority shall determine whether the control framework is proportionate.
Amendment 605 #
Proposal for a regulation
Annex 1 – section 1 – part III – point 14
Annex 1 – section 1 – part III – point 14
14. The control framework shall be documented, reviewed and updated as appropriate and, upon request, made available to users and the relevant competent authority, including the measures established to monitor input data which is not transaction data, shall be documented, reviewed and updated as appropriate, provided to the relevant competent authority and, upon request, made available to users.
Amendment 606 #
Proposal for a regulation
Annex 1 – section 1 – part IV – point 16
Annex 1 – section 1 – part IV – point 16
16. For critical benchmarks, the administrator shall appoint an independent external auditor to review and report on the administrator’s adherence to the benchmark methodology and this Regulation if the size and complexity of the administrator’s benchmark operations poses a significant risk to financial stability.
Amendment 608 #
Proposal for a regulation
Annex 1 – section 1 – part IV – point 17
Annex 1 – section 1 – part IV – point 17
17. Upon the request of the relevant competent authority or any user of tThe benchmark the administrator shall provide or publish details of the reviews in point 15 or audits under point 16 to the relevant competent authority and make them available to any user upon the request.
Amendment 609 #
Proposal for a regulation
Annex 1 – section 1 – part IV – point 18 – point c a (new)
Annex 1 – section 1 – part IV – point 18 – point c a (new)
(ca) Other changes in or deviations from standard procedures and Methodologies, including those made during periods of market stress or disruption;
Amendment 610 #
Proposal for a regulation
Annex 1 – section 1 – part IV – point 18 – point d
Annex 1 – section 1 – part IV – point 18 – point d
(d) the identity of each submitters and the natural persons employed by the administrators for determinwho is involved in producing thea benchmarks determination;
Amendment 611 #
Proposal for a regulation
Annex 1 – section 1 – part IV – point 18 – point f a (new)
Annex 1 – section 1 – part IV – point 18 – point f a (new)
(fa) exposures of individual traders/desks to Benchmark related instruments in order to facilitate audits and investigations;
Amendment 612 #
Proposal for a regulation
Annex 1 – section 1 – part IV – point 18 – point f b (new)
Annex 1 – section 1 – part IV – point 18 – point f b (new)
(fb) results of external or internal audits;
Amendment 613 #
Proposal for a regulation
Annex 1 – section 1 – part IV – point 19
Annex 1 – section 1 – part IV – point 19
19. The administrator shall keep the records set out in point 1 for at least five years non critical benchmarks and eight years for critical benchmarks in such a form that it is possible to replicate and fully understand the benchmark calculations and enable an audit or evaluation of the input data, calculations, judgements and discretion. Records of telephone conversation or electronic communications recorded in accordance with point 18(f) shall be provided to the persons involved in the conversation or communication upon request and shall be kept for a period of three years.
Amendment 615 #
Proposal for a regulation
Article 25 – title
Article 25 – title
Amendment 616 #
Proposal for a regulation
Annex 1 – section 2 – point 1 – point a a (new)
Annex 1 – section 2 – point 1 – point a a (new)
(aa) the administrator shall adopt appropriate written arrangements clearly defining the roles and obligations of the service provider who participates in the benchmark determination process, as well as the standards the service provider is expected to comply with;
Amendment 616 #
Proposal for a regulation
Article 25 – paragraph 1
Article 25 – paragraph 1
1. Whenever a competent authority becomes aware that Before an index is used by a supervised entity as a benchmark in the Union, the entity shall verify that the provider of the relevant index is being used as a reference to a financial instrument, or that a request for admission to trading has been made to a trading venue supervised by that competent authority in respect of a financial instrument that references an index, that competent authority shall notify ESMA within 10 working days. referenced on the website of ESMA as an authorised or registered administrator in accordance with this Regulation. If this is not the case, the entity shall notify the provider of the relevant index providing full details of its intended use and requesting the provider of the index to confirm that it consents to the intended use of the index within 10 working days. In such circumstances, the index cannot be used by the entity as a benchmark in the Union without the prior consent of the provider of the index. In case of conflict, the national competent authority and ESMA shall be notified.
Amendment 617 #
Proposal for a regulation
Annex 1 – section 2 – point 1 – point a b (new)
Annex 1 – section 2 – point 1 – point a b (new)
(ab) the administrator shall make available to the relevant competent authorities the identity and roles of the service provider who participates in the benchmark determination process;
Amendment 618 #
Proposal for a regulation
Annex 1 – section 2 – point 1 – point b
Annex 1 – section 2 – point 1 – point b
(b) the administrator shall be take appropriate action if it appears that the service provider may not be carrying out the functions effectively and in compliance with applicable laws and regulatory requirements;
Amendment 618 #
Proposal for a regulation
Article 25 – paragraph 2
Article 25 – paragraph 2
Amendment 620 #
Proposal for a regulation
Annex 1 – section 2 – point 1 – point f a (new)
Annex 1 – section 2 – point 1 – point f a (new)
(fa) the administrator shall take reasonable steps, including contingency plans, to avoid undue operational risk related to the participation of the service provider in the benchmark determination process;
Amendment 621 #
Proposal for a regulation
Article 25 – paragraph 3
Article 25 – paragraph 3
Amendment 622 #
Proposal for a regulation
Annex 1 – section 3 – part I – point 1 a (new)
Annex 1 – section 3 – part I – point 1 a (new)
1a. For the purpose of this Regulation, transaction data includes: (a) concluded transactions in the underlying markets to which the contributor is a party; (b) concluded transactions between entities other than the contributor in the underlying market; (c) concluded transactions in related markets.
Amendment 623 #
Proposal for a regulation
Annex 1 – section 3 – part I – point 1 b (new)
Annex 1 – section 3 – part I – point 1 b (new)
Amendment 623 #
Proposal for a regulation
Article 25 – paragraph 4
Article 25 – paragraph 4
Amendment 624 #
Proposal for a regulation
Article 25 a (new)
Article 25 a (new)
Amendment 626 #
Proposal for a regulation
Annex 1 – section 3 – part II – point 3 a (new)
Annex 1 – section 3 – part II – point 3 a (new)
3a. The benchmark methodology of a critical benchmark shall be authorized by ESMA before it can be used by the administrator in the determination of the critical benchmark.
Amendment 627 #
Proposal for a regulation
Annex 1 – section 3 – part II – point 4 a (new)
Annex 1 – section 3 – part II – point 4 a (new)
4a. An administrator shall publish with each benchmark determination : (a) a concise explanation of how the determination was developed, including, at a minimum, the size and liquidity of the market being assessed, the range and average volume and range and average of price, and indicative percentages of each type of market data that have been considered in a benchmark determination; and the terms referring to the pricing methodology (i.e., transaction- based, spread-based or interpolated/extrapolated); (b) a concise explanation of the extent to which and the basis upon which exercise of judgment or discretion if any, was used in the benchmark determination.
Amendment 629 #
Proposal for a regulation
Annex 1 – section 4 – point 1 – point c – indent 6 a (new)
Annex 1 – section 4 – point 1 – point c – indent 6 a (new)
- outsourcing
Amendment 631 #
Proposal for a regulation
Article 27 a (new)
Article 27 a (new)
Article 27a Cooperation between authorities 1. Competent authorities shall cooperate with each other and with ESMA where it is necessary for the purposes of this Regulation. In particular, they shall exchange information, without undue delay, and cooperate in investigation, supervision and enforcement activities. 2. Competent authorities shall, on request, immediately supply any information required for the purpose referred to in paragraph 1. 3. Where a competent authority is convinced that acts contrary to the provisions of this Regulation are being, or have been, carried out on the territory of another Member State, it shall give notice of that fact in as specific a manner as possible to the competent authority of the other Member State and to ESMA.
Amendment 634 #
Proposal for a regulation
Annex 1 – section 6 – paragraph 1 – point c
Annex 1 – section 6 – paragraph 1 – point c
(c) the criteria and procedures used to determine the benchmark, including a description of the input data, the priority given to different types of input data, minimum data needed to determine a benchmark, the use of any models or methods of extrapolation and any procedure for rebalancing the constituents of a benchmark’s index;
Amendment 634 #
Proposal for a regulation
Article 28 – paragraph 3 – introductory part
Article 28 – paragraph 3 – introductory part
3. Where a competent authority receives a request from another competent authority to carry out an on-site inspection or an investigation, it shall fully cooperate, and it may:
Amendment 635 #
Proposal for a regulation
Annex 1 – section 6 – paragraph 1 – point c a (new)
Annex 1 – section 6 – paragraph 1 – point c a (new)
(ca) a list of all the contributors with detailed identification;
Amendment 635 #
Proposal for a regulation
Article 28 – paragraph 3 – point a
Article 28 – paragraph 3 – point a
(a) propose to carry out the on-site inspection or investigation itself; or participate;
Amendment 636 #
Proposal for a regulation
Annex 1 – section 6 – paragraph 1 – point e a (new)
Annex 1 – section 6 – paragraph 1 – point e a (new)
(ea) an accurate description of the economic reality the benchmark is intended to measure;
Amendment 636 #
Proposal for a regulation
Article 28 – paragraph 3 – point c
Article 28 – paragraph 3 – point c
(c) appoint auditors or experts to carry ousupport the on-site inspection or investigation.
Amendment 637 #
Proposal for a regulation
Annex 1 – section 6 – paragraph 1 – point f a (new)
Annex 1 – section 6 – paragraph 1 – point f a (new)
(fa) the identification of potential limitations of a benchmark, including its operation in illiquid or fragmented markets and the possible concentration of inputs.
Amendment 639 #
Proposal for a regulation
Article 30 – paragraph 1 – introductory part
Article 30 – paragraph 1 – introductory part
1. In order to fulfil their duties under this Regulation, competent authorities, or ESMA in the case of an interbank interest rate benchmark, a foreign exchange rate benchmark [Article 3, point 19a], a commodity benchmark or critical benchmarks shall have in conformity with national and EU law, at least the following supervisory and investigatory powers:
Amendment 641 #
Proposal for a regulation
Annex 2 – point 10 – point a
Annex 2 – point 10 – point a
(a) reviewing at least annually the benchmark’s definition and methodology;
Amendment 646 #
Proposal for a regulation
Article 30 – paragraph 2 – subparagraph 1 – introductory part
Article 30 – paragraph 2 – subparagraph 1 – introductory part
The competent authorities, or ESMA in the case of an interbank interest rate benchmark, a foreign exchange rate benchmark [Article 3, point 19a], a commodity benchmark or critical benchmarks, shall exercise their functions and powers, referred to in paragraph 1, in any of the following ways:
Amendment 647 #
Proposal for a regulation
Article 30 – paragraph 2 – subparagraph 2
Article 30 – paragraph 2 – subparagraph 2
For the exercise of those powers, competent authorities, or ESMA in the case of an interbank interest rate benchmark, a foreign exchange rate benchmark [Article 3, point 19a], a commodity benchmark, or critical benchmarks, shall have in place adequate and effective safeguards in regard to the right of defence and fundamental rights.
Amendment 648 #
Proposal for a regulation
Article 30 – paragraph 3
Article 30 – paragraph 3
3. Member States shall ensure that appropriate measures are in place so that competent authorities, or ESMA in the case of an interbank interest rate benchmark, a foreign exchange rate benchmark [Article 3, point 19a], a commodity benchmark, or critical benchmarks, have all the supervisory and investigatory powers that are necessary to fulfil their duties.
Amendment 664 #
Proposal for a regulation
Article 31 – paragraph 4 a (new)
Article 31 – paragraph 4 a (new)
4a. This article shall apply mutatis mutandi to ESMA in the case of an interbank interest rate benchmark, a foreign exchange rate benchmark [Article 3, point 19a], a commodity benchmark or critical benchmarks.
Amendment 671 #
Proposal for a regulation
Article 32 – paragraph 2 a (new)
Article 32 – paragraph 2 a (new)
2a. This article shall apply mutatis mutandi to ESMA in the case of an interbank interest rate benchmark, a foreign exchange rate benchmark, a commodity benchmark or critical benchmarks
Amendment 673 #
Proposal for a regulation
Article 33 – paragraph 4 a (new)
Article 33 – paragraph 4 a (new)
4a. This article shall apply mutatis mutandi to ESMA in the case of an interbank interest rate benchmark, a foreign exchange rate benchmark, a commodity benchmark or critical benchmarks.
Amendment 674 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
1. Within 30 working days from the entry into force of the decision referred to in Article 13(1) determining a benchmark as critical benchmark, the competent authorityESMA shall establish a college of competent authorities.
Amendment 681 #
Proposal for a regulation
Article 34 – paragraph 3 – subparagraph 2
Article 34 – paragraph 3 – subparagraph 2
Where a competent authority intends to become a member of a college pursuant to the first subparagraph, it shall submit a request to the competent authority of the administratorESMA containing evidence that the requirements of that provision are fulfilled. The relevant competent authority of the administratorESMA shall consider the request and notify the requesting authority within 20 working days of receipt of the request whether or not it considers those requirements to be fulfilled. Where it considers those requirements not to be fulfilled, the requesting authority may refer the matter to ESMA in accordance with paragraph 10.
Amendment 683 #
Proposal for a regulation
Article 34 – paragraph 4
Article 34 – paragraph 4
4. ESMA shall contribute to promoting and monitoringlead the college and ensure the efficient, effective and consistent functioning of colleges of supervisors referred to in this Article in accordance with Article 21 of Regulation (EU) No 1095/2010. To that end, ESMA shall participate as appropriate and shall be considered to be a competent authority for that purpose.
Amendment 685 #
Proposal for a regulation
Article 34 – paragraph 5
Article 34 – paragraph 5
5. The competent authority of the administratorESMA shall chair the meetings of the college, coordinate the actions of the college and ensure efficient exchange of information among members of the college.
Amendment 687 #
Proposal for a regulation
Article 34 – paragraph 6 – subparagraph 1 – introductory part
Article 34 – paragraph 6 – subparagraph 1 – introductory part
Amendment 689 #
Proposal for a regulation
Article 34 – paragraph 6 – subparagraph 2
Article 34 – paragraph 6 – subparagraph 2
Where the administrator provides more than one benchmark, the competent authority of the administratorESMA may establish a single college in respect of all the benchmarks provided by that administrator.
Amendment 693 #
Proposal for a regulation
Article 34 – paragraph 8 – subparagraph 1
Article 34 – paragraph 8 – subparagraph 1
Before taking any measures referred to Article 14, 23, 24 and 31 the competent authority of the administratorall members of the college shall be consult the members of the colleged. The members of the college shall do everything reasonable within their power to reach an agreement.
Amendment 694 #
Proposal for a regulation
Article 34 – paragraph 8 – subparagraph 2
Article 34 – paragraph 8 – subparagraph 2
Any decision of the competent authority of the administratorllege to take such measures shall take account of the impact on the other competent authorities and their respective Member States, in particular the potential impact on the stability of the financial system in any other Member States concerned.
Amendment 696 #
Proposal for a regulation
Article 34 – paragraph 9
Article 34 – paragraph 9
9. In the absence of agreement between the members of the college on whether to take any measures referred to in paragraph 8, within 15 working days after the matter was notified to the college, the competent authority of the administratorESMA may adopt a decision. Any deviation of that decision from the opinions expressed by the other members of the college and, where appropriate, ESMA shall be fully reasoned. The competent authority of the administratorESMA shall notify its decision, without undue delay, to the college and ESMA.
Amendment 704 #
Proposal for a regulation
Article 34 – paragraph 10 – subparagraph 1 – point b
Article 34 – paragraph 10 – subparagraph 1 – point b
Amendment 727 #
Proposal for a regulation
Article 40 – paragraph 1 – introductory part
Article 40 – paragraph 1 – introductory part
By 1 July 20187, the Commission shall review and report to the European Parliament and the Council on this Regulation and in particular:
Amendment 730 #
Proposal for a regulation
Article 40 – paragraph 1 – point b
Article 40 – paragraph 1 – point b
(b) the effectiveness of the supervisory regime in Title VI and, the colleges under Article 34, ESMA in the case of interbank interest rate benchmark, or a foreign exchange rate benchmark, a commodity benchmark or critical benchmarks, and the appropriateness of supervision of certainall critical benchmarks by a Union bodyESMA ; and
Amendment 731 #
Proposal for a regulation
Article 40 – paragraph 1 – point b a (new)
Article 40 – paragraph 1 – point b a (new)
(ba) the rules governing the appropriateness of the use of a benchmark in Article 17a, taking account the findings of the report to be published in accordance with Article 17a(3), and
Amendment 742 #
Proposal for a regulation
Annex I – section A – part I – point 8 a (new)
Annex I – section A – part I – point 8 a (new)
8a. An Administrator shall develop and maintain robust procedures regarding its oversight function, which shall be made available to the relevant competent authorities. The main features of the procedures shall include: a) the terms of reference of the oversight function; b) criteria to select members of the oversight function; c) the summary details of membership of any board or committee charged with the oversight function, along with any declarations of conflicts of interest and processes for election, nomination or removal and replacement of committee members;
Amendment 743 #
Proposal for a regulation
Annex I – section A – part II – point 9 – point a
Annex I – section A – part II – point 9 – point a
(a) reviewing at least annually the benchmark's definition and methodology;
Amendment 744 #
Proposal for a regulation
Annex I – section A – part II – point 9 – point f
Annex I – section A – part II – point 9 – point f
(f) assessing internal and external audits or reviews, and monitoring the implementation of identified actionremedial actions highlighted in the results of these audits;
Amendment 746 #
Proposal for a regulation
Annex I – section A – part II – point 10 – point a
Annex I – section A – part II – point 10 – point a
(a) where the administrator is owned or controlled by contributors or users, a separate board or committee, whose composition ensures its independence and the absence of conflicts of interest. Where the administrator is owned or controlled by contributors, a majorityt least half of the members of the committee shouldall not be contributors. Where the administrator is owned or controlled by users, a majorityt least half of the members of the committee shouldall not be users;
Amendment 748 #
Proposal for a regulation
Annex I – section A – part II – point 10 – point c
Annex I – section A – part II – point 10 – point c
(c) where the administrator is able to demonstrate to ESMA and the relevant competent authorities that in view of the nature, scale and complexity of its provision of the benchmark, and the risk and impact of the benchmark, the requirements under points a and b are not proportionate, a natural person may provide the function of oversight officer. The oversight officer must not be involved in the provision of any benchmark they oversee.
Amendment 750 #
Proposal for a regulation
Annex I – section A – part III – point 12 – introductory part
Annex I – section A – part III – point 12 – introductory part
12. An administrator shall ensure that there is an appropriate control framework for the provision of the benchmark. The control framework shouldall be proportionate to the level of conflicts identified, the extent of discretion in the benchmark process and the nature of benchmark input data, and include:
Amendment 751 #
Proposal for a regulation
Annex I – section A – part III – point 12 a (new)
Annex I – section A – part III – point 12 a (new)
12a. The relevant competent authority shall determine whether the control framework is proportionate.
Amendment 752 #
Proposal for a regulation
Annex I – section A – part III – point 14
Annex I – section A – part III – point 14
14. The control framework, including the measures established to monitor input data which is not transaction data, shall be documented, reviewed and updated as appropriate and, upon request, made available to users and, provided to the relevant competent authority and, upon request, made available to users.
Amendment 753 #
Proposal for a regulation
Annex I – section A – part IV – point 16
Annex I – section A – part IV – point 16
16. For critical benchmarks, the administrator shall appoint an independent external auditor to review and report on the administrator's adherence to the benchmark methodology and this Regulation if the size and complexity of the administrator's benchmark operations poses a significant risk to financial stability.
Amendment 754 #
Proposal for a regulation
Annex I – section A – part IV – point 17
Annex I – section A – part IV – point 17
17. Upon the request of the relevant competent authority or any user of tThe benchmark administrator shall provide or publish details of the reviews in point 15 or audits under point 16 to the relevant competent authority and make them available to any user upon the request.
Amendment 755 #
Proposal for a regulation
Annex I – section A – part IV – point 18 – point c a (new)
Annex I – section A – part IV – point 18 – point c a (new)
(ca) Other changes in or deviations from standard procedures and Methodologies, including those made during periods of market stress or disruption;
Amendment 756 #
Proposal for a regulation
Annex I – section A – part IV – point 18 – point d
Annex I – section A – part IV – point 18 – point d
(d) the identity of each submitters and the natural persons employed by the administrators for determinwho is involved in producing thea benchmarks determination;
Amendment 757 #
Proposal for a regulation
Annex I – section A – part IV – point 18 – point f a (new)
Annex I – section A – part IV – point 18 – point f a (new)
(fa) exposures of individual traders/desks to Benchmark related instruments in order to facilitate audits and investigations;
Amendment 758 #
Proposal for a regulation
Annex I – section A – part IV – point 18 – point f b (new)
Annex I – section A – part IV – point 18 – point f b (new)
(fb) results of external or internal audits;
Amendment 760 #
Proposal for a regulation
Annex I – section A – part IV – point 19
Annex I – section A – part IV – point 19
19. The administrator shall keep the records set out in point 1 for at least five years non critical benchmarks and eight years for critical benchmarks in such a form that it is possible to replicate and fully understand the benchmark calculations and enable an audit or evaluation of the input data, calculations, judgements and discretion. Records of telephone conversation or electronic communications recorded in accordance with point 18(f) shall be provided to the persons involved in the conversation or communication upon request and shall be kept for a period of three years.
Amendment 761 #
Proposal for a regulation
Annex I – section B – point 1 – point a a (new)
Annex I – section B – point 1 – point a a (new)
(aa) the administrator shall adopt appropriate written arrangements clearly defining the roles and obligations of the service provider who participates in the benchmark determination process, as well as the standards the service provider is expected to comply with;
Amendment 762 #
Proposal for a regulation
Annex I – section B – point 1 – point a b (new)
Annex I – section B – point 1 – point a b (new)
(ab) the administrator shall make available to the relevant competent authorities the identity and roles of the service provider who participates in the benchmark determination process;
Amendment 763 #
Proposal for a regulation
Annex I – section B – point 1 – point b
Annex I – section B – point 1 – point b
(b) the administrator shall be take appropriate action if it appears that the service provider may not be carrying out the functions effectively and in compliance with applicable laws and regulatory requirements;
Amendment 764 #
Proposal for a regulation
Annex I – section B – point 1 – point f a (new)
Annex I – section B – point 1 – point f a (new)
(fa) the administrator shall take reasonable steps, including contingency plans, to avoid undue operational risk related to the participation of the service provider in the benchmark determination process.
Amendment 765 #
Proposal for a regulation
Annex I – section C – part I – point 1 a (new)
Annex I – section C – part I – point 1 a (new)
1a. For the purpose of this Regulation, transaction data includes: (a) concluded transactions in the underlying markets to which the contributor is a party; (b) concluded transactions between entities other than the contributor in the underlying market; (c) concluded transactions in related markets.
Amendment 766 #
Proposal for a regulation
Annex I – section C – part I – point 1 b (new)
Annex I – section C – part I – point 1 b (new)
1b. For the purpose of this Regulation, input data which is not transaction data includes: (a) firm or executable bids and offers; (b) indicative quotes; (c) other market information; (d) expert judgment; (e) extrapolations from transaction data; (f) other market information;
Amendment 768 #
Proposal for a regulation
Annex I – section C – part II – point 3 a (new)
Annex I – section C – part II – point 3 a (new)
3a. The benchmark methodology of a critical benchmark shall be authorised by ESMA before it can be used by the administrator in the determination of the critical benchmark.
Amendment 769 #
Proposal for a regulation
Annex I – section C – part II – point 4 a (new)
Annex I – section C – part II – point 4 a (new)
4a. An administrator shall publish with each benchmark determination : a) a concise explanation of how the determination was developed, including, at a minimum, the size and liquidity of the market being assessed, the range and average volume and range and average of price, and indicative percentages of each type of market data that have been considered in a benchmark determination; and the terms referring to the pricing methodology (i.e., transaction- based, spread-based or interpolated/extrapolated); b) a concise explanation of the extent to which and the basis upon which exercise of judgment or discretion if any, was used in the benchmark determination.
Amendment 771 #
Proposal for a regulation
Annex I – section D – point 1 – point c – indent 6 a (new)
Annex I – section D – point 1 – point c – indent 6 a (new)
- outsourcing.
Amendment 773 #
Proposal for a regulation
Annex I – section D – paragraph 1 – point c
Annex I – section D – paragraph 1 – point c
(c) the criteria and procedures used to determine the benchmark, including a description of the input data, the priority given to different types of input data, minimum data needed to determine a benchmark, the use of any models or methods of extrapolation and any procedure for rebalancing the constituents of a benchmark's index;
Amendment 774 #
Proposal for a regulation
Annex I – section E – paragraph 1 – point c a (new)
Annex I – section E – paragraph 1 – point c a (new)
(ca) a list of all the contributors with detailed identification;
Amendment 775 #
Proposal for a regulation
Annex I – section E – paragraph 1 – point e a (new)
Annex I – section E – paragraph 1 – point e a (new)
(ea) an accurate description of the economic reality the benchmark is intended to measure;
Amendment 776 #
Proposal for a regulation
Annex I – section E – paragraph 1 – point f a (new)
Annex I – section E – paragraph 1 – point f a (new)
(fa) the identification of potential limitations of a benchmark, including its operation in illiquid or fragmented markets and the possible concentration of inputs.
Amendment 779 #
Proposal for a regulation
Annex II – point 10 – point a
Annex II – point 10 – point a
(a) reviewing at least annually the benchmark's definition and methodology;