LegalizeCommission Delegated Regulation (EU) 2018/1646 of 13 July 2018 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council with regard to regulatory technical standards for the information to be provided in an application for authorisation and in an application for registration (Text with EEA relevance.)
Article 1
General requirements
An application pursuant to Article 34 of Regulation (EU) 2016/1011 shall contain, as appropriate, information that includes the following:
- (a) items listed in Annex I, when the applicant is a legal person applying for authorisation;
- (b) items listed in Annex II, when the applicant is a legal person applying for registration;
- (c) items listed in Annex I, when the applicant is a natural person applying for authorisation, with the exception of the information listed at points (c), (f), (h) and (i) of paragraph 1 of Annex I;
- (d) items listed in Annex II, when the applicant is a natural person applying for registration, with the exception of the information listed at points (c), (f), (h) and (i) of paragraph 1 of Annex II.
The application may contain information at the level of a family of benchmarks only where none of the benchmarks within the family is included in the list of critical benchmarks established in accordance with Article 20(1) of Regulation (EU) 2016/1011.
Where the applicant has omitted to provide any of the required information the application shall include an explanation as to why that information has not been provided.
The applicant shall not be required to provide the information listed under points (f) to (j) of paragraph 1 of Annex I or Annex II, as applicable, to the extent that the applicant is already supervised in the Member State by the same competent authority for other activities than the provision of benchmarks.
Personal data relating to the good repute of an applicant benchmark administrator’s management body and of employees responsible for the oversight function, or of members performing the oversight function where a separate committee carries out the oversight function shall be kept by applicant benchmark administrators and competent authorities as long as necessary to assess the initial application and the ongoing supervision, as applicable, and no longer than five years after that person has ceased to perform its function.
Article 1a
Format of the application
The application referred to in Article 1 shall be submitted by electronic means unless specified otherwise in the applicable national law. Those electronic means shall ensure the completeness, integrity and confidentiality of the information during its transmission. Each submitted document shall clearly identify to which specific requirement of this Regulation it refers.
Article 2
Information to be provided for types of benchmarks
An applicant may submit for any non-significant benchmark that it provides the information required by paragraph 6 of Annex I or, where applicable, paragraph 6 of Annex II in the form of a summary.
Non-supervised entities providing critical and significant benchmarks shall submit the information listed in Annex I.
Supervised entities providing only non-critical benchmarks shall submit the information listed in the first column of Annex II.
An applicant providing only non-significant benchmarks shall submit the information listed in the second column of Annex II.
Without prejudice to paragraphs 1 to 4, an applicant providing only regulated-data benchmarks shall not submit the information listed in points 5(c), 6(a)(iii) and 6(a)(iv) of Annex I and Annex II.
An applicant providing only interest rate benchmarks shall submit the information listed in the Annexes of this Regulation and shall specify how the specific requirements set out in Annex I of Regulation (EU) 2016/1011 are implemented where the provisions in Annex I of Regulation (EU) 2016/1011 apply in addition to, or as a substitute for, the requirements in Title II of Regulation (EU) 2016/1011, pursuant to Article 18 of that Regulation.
An applicant providing only commodity benchmarks shall provide the information listed in Annex I of this Regulation if it is a non-supervised entity or if it provides a critical benchmark. If it is a supervised entity and none of the benchmarks it provides is a critical benchmark, it shall provide the information listed in the first column of Annex II. The applicant shall specify how the requirements set out in Annex II of Regulation (EU) 2016/1011 are implemented for any commodity benchmark subject to Annex II instead of Title II of Regulation (EU) 2016/1011 pursuant to Article 19 of Regulation (EU) 2016/1011.
Article 3
Specific information concerning policies and procedures
Any policies and procedures provided in an application shall contain or be accompanied by:
- (a) an indication of the identity of the person or persons responsible for the approval and maintenance of the policies and procedures;
- (b) a description of how compliance with the policies and procedures is monitored and the identity of persons responsible for this monitoring;
- (c) a description of the measures to be taken in the event of a breach of the policies and procedures.
An applicant that is part of a group may comply with paragraph 1 by submitting the policies and procedures of its group where they relate to the provision of benchmarks.
Article 4
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
It shall apply from 25 January 2019.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
ANNEX I
Information to be provided in an application for authorisation under Article 34 of Regulation (EU) 2016/1011
1. GENERAL INFORMATION
- (a) full name of the applicant and its Legal Entity Identifier (LEI), where available;
- (b) address of the office within the Union;
- (c) legal status;
- (d) website, if any;
- (e) with respect to the contact person for the purpose of the application:
- (i) name;
- (ii) title;
- (iii) address;
- (iv) email address;
- (v) telephone number;
- (f) where the applicant is a supervised entity, information about its current authorisation status, including the activities for which it is authorised and its relevant competent authority in its home Member State;
- (g) a description of the operations of the applicant in the Union, whether or not subject to financial regulation, that are relevant for the activity of the provision of benchmarks, along with a description of where those operations are conducted;
- (h) any deed of incorporation, articles of association, or other constitutional documents;
- (i) where the applicant is part of a group, its group structure, along with the ownership chart, showing the links between any parent undertaking and subsidiaries, with the undertakings and subsidiaries shown in the chart identified by their full name, legal status and address of the registered office and head office;
- (j) a self-declaration of good repute including details, where applicable, of any:
- (i) proceedings of a disciplinary nature in connection with the provision of financial services, misconduct or fraud against the applicant (unless dismissed);
- (ii) refusal of authorisation or registration by a financial authority;
- (iii) withdrawal of authorisation or registration by a financial authority;
- (iv) adverse findings in civil proceedings in connection with the provision of financial services, misconduct, or fraud;
- (k) number of benchmarks provided.
2. ORGANISATIONAL STRUCTURE AND GOVERNANCE
- (a) the internal organisational structure with respect to the board of directors, senior management committees, oversight function, and any other internal body exercising significant management functions involved in the provision of a benchmark as referred to in Article 4(1) of Regulation (EU) 2016/1011 and as further specified in Commission Delegated Regulation (EU) 2021/1350 ([^E0001]), including their:
- (i) terms of reference or a summary thereof;
- (ii) adherence to any governance codes or similar provisions;
- (b) a description of the procedures to ensure that the employees of the administrator and any other natural persons whose services are placed at its disposal or under its control and who are directly involved in the provision of a benchmark have the necessary skills, knowledge and experience for the duties assigned to them and comply with Article 4(7), points (b) to (e), of Regulation (EU) 2016/1011;
- (c) the number of employees (temporary and permanent) per function that are directly or indirectly involved in the provision of a benchmark;
- (d) the curriculum vitae, including employment history with relevant dates, identification of past positions held, and a description of the functions occupied, for each of the following:
- (i) the members of the management body;
- (ii) employees responsible for the oversight function or members performing the oversight function in case the oversight function is carried out by a separate committee;
- (iii) employees responsible for the functions within the control framework pursuant to Article 6(3) of Regulation (EU) 2016/1011 and for the internal function referred to in Article 7(2) of that Regulation;
- (e) in respect of each member of the applicant’s management body and employees responsible for the oversight function or members performing the oversight function in case the oversight function is carried out by a separate committee, the following information:
- (i) proof of the absence of recent criminal records for money laundering, terrorist financing, provision of financial services or data services, acts of fraud or embezzlement from the country of origin of the person concerned, unless the relevant national authorities do not issue such a file in which case a self-declaration shall be provided;
- (ii) a self-declaration on whether the relevant person falls under any of the following categories:
- (1) has been convicted of any criminal offence, unless proof of the absence of criminal records referred in point (i) is available;
- (2) has been subject to or has been notified of any proceedings of a disciplinary nature in connection with the provision of financial services, misconduct or fraud brought by a regulatory body or of a criminal nature;
- (3) has been subject to any adverse finding in civil proceedings in connection with the provision of financial services, misconduct, fraud, or the management of a legal entity;
- (4) has been refused the right to carry on activities which require registration or authorisation by a regulatory body or has been investigated or suspended by a regulatory body;
- (5) has been disqualified from acting in any managerial capacity, or has been dismissed from employment or other appointment in an undertaking, as a consequence of allegations of misconduct or malpractice.
3. CONFLICTS OF INTEREST
- (a) A description of the policies and procedures that address:
- (i) how actual and potential conflicts of interest are or will be identified, recorded, managed, mitigated, prevented, or remedied, taking into account the requirements laid down in Article 4(6) of Regulation (EU) 2016/1011;
- (ii) particular circumstances which apply to the applicant or to any particular benchmark provided by the applicant in relation to which conflicts of interest are most likely to arise, including:
- (1) where expert judgment or discretion is exercised in the benchmark’s determination process;
- (2) where the applicant is within the same group as a user of a benchmark;
- (3) where the applicant is a participant in the market or economic reality that the benchmark intends to measure.
- (iii) how the provision of benchmarks is operationally separated from any part of the applicant’s business that may create an actual or potential conflict of interest as referred to in Article 4(2) of Regulation (EU) 2016/1011, unless the applicant has chosen not to apply that requirement in respect of its significant benchmarks as provided for in Article 25 of that Regulation;
- (b) for a benchmark or a family of benchmarks, a list of any material actual or potential conflicts of interest identified, along with the respective mitigation measures;
- (c) the structure of the remuneration policy, specifying the criteria used to determine the remuneration of the persons involved directly or indirectly in the activity of provision of benchmarks.
4. INTERNAL CONTROL STRUCTURE, OVERSIGHT AND ACCOUNTABILITY FRAMEWORK
- (a) a description of the policies and procedures for monitoring the activities of the provision of a benchmark or a family of benchmarks, including those relating to:
- (i) the constitution, role and functioning of the oversight function, as referred to in Article 5 of Regulation (EU) 2016/1011 and as further specified in Commission Delegated Regulation (EU) 2018/1637 ([^E0002]), including procedures for the appointment, substitution or removal of individuals within the oversight function;
- (ii) the constitution, role and functioning of the control framework referred to in Article 6 of Regulation (EU) 2016/1011, including procedures for the appointment, substitution or removal of individuals responsible for that framework;
- (iii) the accountability framework referred to in Article 7 of Regulation (EU) 2016/1011;
- (iv) the record keeping obligations referred to in Article 8 of Regulation (EU) 2016/1011;
- (v) the complaints-handling mechanism referred to in Article 9 of Regulation (EU) 2016/1011;
- (b) a description of the procedures for the internal reporting of infringements of Regulation (EU) 2016/1011 by managers, employees and any other natural persons whose services are placed at the applicant’s disposal or under the control of the applicant as referred to in Article 14 of that Regulation and as further specified in Commission Delegated Regulation (EU) 2021/1351 ([^E0003]).
5. DESCRIPTION OF BENCHMARKS IN SCOPE OR FAMILIES OF BENCHMARKS IN SCOPE PROVIDED
- (a) a description of a benchmark or family of benchmarks provided or, where known, with respect to Paris Aligned Benchmarks, Climate Transition Benchmarks and commodity benchmarks subject to Annex II to Regulation (EU) 2016/1011, that the applicant intends to provide and the type of benchmark, including an estimate of the use of the benchmarks directly or indirectly within a combination of benchmarks as a reference for financial instruments or financial contracts or for measuring the performance of investments, to the best of the knowledge of the applicant and taking into account the provisions of Regulation (EU) 2016/1011 and of Commission Delegated Regulation (EU) 2018/66 ([^E0004]), together with an indication of the sources used to determine the type of the benchmark;
- (b) a description of the underlying market or economic reality that the benchmark or family of benchmarks is intended to measure, together with an indication of the sources used to provide this description;
- (c) a description of contributors to a benchmark or family of benchmarks, together with:
- (i) the code of conduct referred to in Article 15 of Regulation (EU) 2016/1011;
- (ii) for critical benchmarks, the name and location of contributors;
- (d) information on measures to deal with corrections to the determination or publication of a benchmark or family of benchmarks;
- (e) information on the procedure to be undertaken by the administrator in the event of changes to or the cessation of a benchmark or a family of benchmarks, as referred to in Article 28(1) of Regulation (EU) 2016/1011;
- (f) a list including all the benchmarks provided by the applicant that are already used in the Union and, where available, their International Securities Identification Numbers (ISINs);
- (g) the benchmark statement for each benchmark or, where applicable, for each family of benchmarks, as referred to in Article 27 of Regulation (EU) 2016/1011 and as further specified in Commission Delegated Regulation (EU) 2018/1643 ([^E0005]);
- (h) for significant benchmarks, the rationale behind the administrator’s application of any of the exemptions listed in Article 25(1) of Regulation (EU) 2016/1011.
For the purposes of point (h), the information shall be presented, to the extent possible, on the basis of the format established by Commission Delegated Regulation (EU) 2021/1348 ([^E0006]).
6. INPUT DATA AND METHODOLOGY
- (a) for each benchmark or family of benchmarks in scope, a description of the policies and procedures to comply with the input data requirements laid down in Article 11 of Regulation (EU) 2016/1011 and further specified in Commission Delegated Regulation (EU) 2018/1638 ([^E0007]);
- (b) for each benchmark or family of benchmarks in scope, with respect to the methodology:
- (i) any documented evidence that the methodology used for determining a benchmark complies with the requirements laid down in Article 12 of Regulation (EU) 2016/1011 and further specified in Commission Delegated Regulation (EU) 2021/1352 ([^E0008]);
- (ii) any documented evidence that the administrator develops, operates and administers the benchmark and methodology transparently in accordance with Article 13 of Regulation (EU) 2016/1011 and as further specified in Commission Delegated Regulation (EU) 2018/1641 ([^E0009]).
7. OUTSOURCING
Where any activity forming a part of the process for the provision of a benchmark or family of benchmarks in scope of Regulation (EU) 2016/1011 is outsourced, a description of the policies, procedures and the relevant outsourcing arrangements, including service-level agreements, to ensure compliance with Article 10 of Regulation (EU) 2016/1011.
ANNEX II
Information to be provided in an application for registration under Article 34 of Regulation (EU) 2016/1011
‘A’ means ‘Applicable’
‘N/A’ means ‘Not applicable’
| Item in Annex I | Item in Annex I | Supervised entities providing only non-critical benchmarks |
|---|---|---|
| (1) General information | (1) General information | (1) General information |
| 1(a) | Full name | A |
| 1(b) | Address | A |
| 1(c) | Legal status | A |
| 1(d) | Website | A |
| 1(e) | Contact person | A |
| 1(f) | Current authorisation status | A [^E0010] |
| 1(g) | Operations conducted | A [^E0010] |
| 1(h) | Constitutional documents | A [^E0010] |
| 1(i) | Group structure | A [^E0010] |
| 1(j) | Self-declaration of good repute | A [^E0010] |
| 1(k) | Number of benchmarks | A |
| (2) Organisational structure and governance | (2) Organisational structure and governance | (2) Organisational structure and governance |
| 2(a) | Internal organisational structure | A |
| 2(b) | HR procedures | A |
| 2(c) | Number of employees | A |
| 2(d) | Curriculum Vitae | A |
| 2(e) | Criminal record files and self-declarations of good repute | A |
| (3) Conflicts of interest | (3) Conflicts of interest | (3) Conflicts of interest |
| 3(a) | Policies and procedures | A [^E0011] |
| 3(b) | Material conflicts of interest | A |
| 3(c) | Remuneration structure | A |
| (4) Internal control structure, oversight and accountability framework | (4) Internal control structure, oversight and accountability framework | (4) Internal control structure, oversight and accountability framework |
| 4(a) | Policies and procedures for monitoring the activities of the provision of a benchmark | A |
| 4(b) | Internal reporting of infringements | A |
| (5) Description of benchmarks provided | (5) Description of benchmarks provided | (5) Description of benchmarks provided |
| 5(a) | Description | A |
| 5(b) | Underlying market | A |
| 5(c) | Contributors | A |
| 5(d) | Corrections | A |
| 5(e) | Changes to and cessation | A |
| 5(f) | List of benchmarks | A |
| 5(g) | Benchmark statement | A |
| 5(h) | Exemptions | A |
| (6) Input data and methodology | (6) Input data and methodology | (6) Input data and methodology |
| 6(a) | Policies and procedures to comply with Article 11 of Regulation (EU) 2016/1011 | A |
| 6(b)(i) | Documented evidence of compliance with Article 12 or Regulation (EU) 2016/1011 | A |
| 6(b)(ii) | Documented evidence of compliance with Article 13 of Regulation (EU) 2016/1011 | A |
| (7) Outsourcing | (7) Outsourcing | (7) Outsourcing |
| 7 | Policies, procedures and outsourcing arrangements to demonstrate compliance with Article 10 of Regulation (EU) 2016/1011 | A |
| (8) Others | (8) Others | (8) Others |
| 8 | Additional information | A |
Unless already supervised by the same competent authority for other activities than the provision of benchmarks.
An applicant may choose not to provide information relating to point 3(a)(iii) of Annex I, in respect of a significant benchmark it provides.
[^E0001]: Commission Delegated Regulation (EU) 2021/1350 of 6 May 2021 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council with regard to regulatory technical standards specifying the requirements to ensure that an administrator’s governance arrangements are sufficiently robust (OJ L 291, 13.8.2021, p. 9, ELI: http://data.europa.eu/eli/reg_del/2021/1350/oj).
[^E0002]: Commission Delegated Regulation (EU) 2018/1637 of 13 July 2018 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council with regard to regulatory technical standards for the procedures and characteristics of the oversight function (OJ L 274, 5.11.2018, p. 1, ELI: http://data.europa.eu/eli/reg_del/2018/1637/oj).
[^E0003]: Commission Delegated Regulation (EU) 2021/1351 of 6 May 2021 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council with regard to regulatory technical standards specifying the characteristics of the systems and controls for the identification and reporting of any conduct that may involve manipulation or attempted manipulation of a benchmark (OJ L 291, 13.8.2021, p. 13, ELI: http://data.europa.eu/eli/reg_del/2021/1351/oj).
[^E0004]: Commission Delegated Regulation (EU) 2018/66 of 29 September 2017 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council specifying how the nominal amount of financial instruments other than derivatives, the notional amount of derivatives and the net asset value of investment funds are to be assessed (OJ L 12, 17.1.2018, p. 11, ELI: http://data.europa.eu/eli/reg_del/2018/66/oj).
[^E0005]: Commission Delegated Regulation (EU) 2018/1643 of 13 July 2018 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council with regard to regulatory technical standards specifying further the contents of, and cases where updates are required to, the benchmark statement to be published by the administrator of a benchmark (OJ L 274, 5.11.2018, p. 29, ELI: http://data.europa.eu/eli/reg_del/2018/1643/oj).
[^E0006]: Commission Delegated Regulation (EU) 2021/1348 of 6 May 2021 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council with regard to regulatory technical standards specifying the criteria under which competent authorities may require changes to the compliance statement of non-significant benchmarks (OJ L 291, 13.8.2021, p. 1, ELI: http://data.europa.eu/eli/reg_del/2021/1348/oj).
[^E0007]: Commission Delegated Regulation (EU) 2018/1638 of 13 July 2018 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council with regard to regulatory technical standards specifying further how to ensure that input data is appropriate and verifiable, and the internal oversight and verification procedures of a contributor that the administrator of a critical or significant benchmark has to ensure are in place where the input data is contributed from a front office function (OJ L 274, 5.11.2018, p. 6, ELI: http://data.europa.eu/eli/reg_del/2018/1638/oj).
[^E0008]: Commission Delegated Regulation (EU) 2021/1352 of 6 May 2021 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council with regard to regulatory technical standards specifying the conditions to ensure that the methodology for determining a benchmark complies with the quality requirements (OJ L 291, 13.8.2021, p. 16, ELI: http://data.europa.eu/eli/reg_del/2021/1352/oj).
[^E0009]: Commission Delegated Regulation (EU) 2018/1641 of 13 July 2018 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council with regard to regulatory technical standards specifying further the information to be provided by administrators of critical or significant benchmarks on the methodology used to determine the benchmark, the internal review and approval of the methodology and on the procedures for making material changes in the methodology (OJ L 274, 5.11.2018, p. 21, ELI: http://data.europa.eu/eli/reg_del/2018/1641/oj).
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