Regulation (EU) 2016/1011 of the European Parliament and of the CouncilShow full title

Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (Text with EEA relevance)

TITLE VIU.K.AUTHORISATION, REGISTRATION AND SUPERVISION OF ADMINISTRATORS

CHAPTER 1U.K.Authorisation and registration

Article 34U.K.Authorisation and registration of an administrator

1.A natural or legal person located in the [F1United Kingdom] that intends to act as an administrator shall apply to the [F2FCA] in order to receive:

(a)authorisation if it provides or intends to provide indices which are used or intended to be used as benchmarks within the meaning of this Regulation;

(b)registration if it is a supervised entity, other than an administrator, that provides or intends to provide indices which are used or intended to be used as benchmarks within the meaning of this Regulation, on condition that the activity of provision of a benchmark is not prevented by the sectoral discipline applying to the supervised entity and that none of the indices provided would qualify as a critical benchmark; or

(c)registration if it provides or intends to provide only indices which would qualify as non-significant benchmarks.

2.An authorised or registered administrator shall comply at all times with the conditions laid down in this Regulation and shall notify the [F3FCA] of any material changes thereof.

3.The application referred to in paragraph 1 shall be made within 30 working days of any agreement entered into by a supervised entity to use an index provided by the applicant as a reference to a financial instrument or financial contract or to measure the performance of an investment fund.

4.The applicant shall provide all information necessary to satisfy the [F4FCA] that the applicant has established, at the time of authorisation or registration, all the necessary arrangements to meet the requirements laid down in this Regulation.

5.Within 15 working days of receipt of the application, the [F5FCA] shall assess whether the application is complete and shall notify the applicant accordingly. If the application is incomplete, the applicant shall submit the additional information required by the [F5FCA]. The time limit referred to in this paragraph shall apply from the date on which such additional information is provided by the applicant.

6.The [F6FCA] shall:

(a)examine the application for authorisation and adopt a decision to authorise or refuse to authorise the applicant within four months of receipt of a complete application;

(b)examine the application for registration and adopt a decision to register or refuse to register the applicant within 45 working days of receipt of a complete application.

Within five working days of the adoption of a decision referred to in the first subparagraph, the [F7FCA] shall notify it to the applicant. Where the [F7FCA] refuses to authorise or to register the applicant, it shall give reasons for its decision.

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8.[F9The FCA may make] technical standards to specify further the information to be provided in the application for authorisation and in the application for registration, taking into account that authorisation and registration are distinct processes where authorisation requires a more extensive assessment of the administrator's application, the principle of proportionality, the nature of the supervised entities applying for registration under point (b) of paragraph 1 and the costs to the applicants and [F10the FCA].

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Article 35U.K.Withdrawal or suspension of authorisation or registration

1.[F12The FCA] may withdraw or suspend the authorisation or registration of an administrator where the administrator:

(a)expressly renounces the authorisation or registration or has provided no benchmarks for the preceding 12 months;

(b)has obtained the authorisation or registration, or has endorsed a benchmark, by making false statements or by any other irregular means;

(c)no longer meets the conditions under which it was authorised or registered; or

(d)has seriously or repeatedly infringed the provisions of this Regulation.

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[F14The FCA] shall promptly update the [F15FCA register].

3.Following the adoption of a decision to suspend the authorisation or registration of an administrator, and where cessation of the benchmark would result in a force majeure event, or frustrate or otherwise breach the terms of any financial contract or financial instrument, or the rules of any investment fund, which references that benchmark, as specified in the [F162018 Delegated Regulation or regulations made by the Treasury] pursuant to Article 51(6), the provision of the benchmark in question may be permitted by the [F17FCA] until the decision of suspension has been withdrawn. During that period of time, the use of such benchmark by supervised entities shall be permitted only for financial contracts, financial instruments and investment funds that already reference the benchmark.

4.Following the adoption of a decision to withdraw the authorisation or registration of an administrator, Article 28(2) shall apply.

[F185.In paragraph 3, the “2018 Delegated Regulation” means Commission Delegated Regulation (EU) 2018/67 of 3 October 2017 supplementing Regulation (EU) 2016/1011 of the European Parliament and of the Council with regard to the establishment of the conditions to assess the impact resulting from the cessation of or change to existing benchmarks.]

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Article 36U.K.Register of administrators and benchmarks

1.[F19The FCA] shall establish and maintain a public register that contains the following information:

(a)the identities of the administrators authorised or registered pursuant to Article 34 and [F20that the FCA is responsible for the supervision thereof];

(b)the identities of administrators that comply with the conditions laid down in Article 30(1), the list of benchmarks referred to in point (c) of Article 30(1) and the third country competent authorities responsible for the supervision thereof;

(c)the identities of the administrators that acquired recognition in accordance with Article 32, the list of benchmarks [F21provided by the administrator in accordance with Article 32(5) which may be used in the United Kingdom] and, where applicable, the third country competent authorities responsible for the supervision thereof;

(d)the benchmarks that are endorsed in accordance with the procedure laid down in Article 33, the identities of their administrators, and the identities of the endorsing administrators or endorsing supervised entities;

[F22(e)any prohibitions under Article 21A or 23B on the use of benchmarks by supervised entities that are in force;

(f)any benchmarks that are Article 23A benchmarks.]

2.The register referred to in paragraph 1 shall be publicly accessible on the website of [F23the FCA] and shall be updated promptly, as necessary.

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CHAPTER 2U.K.Supervisory cooperation

F24Article 37U.K.Delegation of tasks between competent authorities

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F24Article 38U.K.Disclosure of information from another Member State

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F24Article 39U.K.Cooperation on on-site inspections and investigations

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CHAPTER 3U.K.Role of competent authorities

F24Article 40U.K.Competent authorities

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Article 41U.K.Powers of competent authorities

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4.An administrator or any other supervised entity making information available [F26at the request of the FCA or in response to a requirement imposed by the FCA in the exercise of its functions under Regulation (EU) 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC] shall not be considered to be in breach of any restriction on disclosure of information posed by any contractual, legislative, regulatory or administrative provision.

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F27Article 42U.K.Administrative sanctions and other administrative measures

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F27Article 43U.K.Exercise of supervisory powers and imposition of sanctions

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F27Article 44U.K.Obligation to cooperate

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Article 45U.K.Publication of decisions

1.Subject to paragraph 2, [F28the FCA] shall publish any decision imposing an administrative sanction or other administrative measure in relation to infringements of this Regulation on its official website immediately after the person subject to that decision has been informed of that decision. Such publication shall include at least information on the type and nature of the infringement and the identity of the persons subject to the decision.

The first subparagraph does not apply to decisions imposing measures that are of an investigatory nature.

2.Where [F29the FCA] considers that the publication of the identity of the legal person or of the personal data of a natural person, would be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data, or where such publication would jeopardise the stability of financial markets or an on-going investigation, it shall do any of the following:

(a)defer publication of the decision until such time as the reasons for that deferral cease to exist;

(b)publish the decision on an anonymous basis in accordance with national law where such anonymous publication ensures an effective protection of the personal data concerned;

(c)not publish the decision at all in the event that [F30the FCA] is of the opinion that publication in accordance with point (a) or (b) will be insufficient to ensure:

(i)that the stability of financial markets is not jeopardised; or

(ii)the proportionality of the publication of such decisions with regard to measures which are deemed to be of a minor nature.

Where [F29the FCA] decides to publish a decision on an anonymous basis as referred to in point (b) of the first subparagraph, it may postpone the publication of the relevant data for a reasonable period of time where it is foreseeable that the reasons for anonymous publication shall cease to exist during that period.

3.Where the decision is subject to an appeal before a national judicial, administrative or other authority, [F31the FCA] shall also publish, immediately, on its official website such information and any subsequent information on the outcome of such appeal. Any decision annulling a previous decision to impose a sanction or a measure shall also be published.

4.The [F32FCA] shall ensure that any decision that is published in accordance with this Article shall remain accessible on its official website for a period of at least five years after its publication. Personal data contained in the publication shall only be kept on the official website of the [F32FCA] for the period which is necessary in accordance with the applicable data protection rules.

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Article 46U.K.[F34Cessation of a critical benchmark in certain circumstances]

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With regard to the decision to withdraw the authorisation or registration of an administrator in accordance with Article 35, whenever the cessation of a [F37critical] benchmark would result in a force majeure event, frustrate or otherwise breach the terms of any financial contract or financial instrument, or the rules of any investment fund, which references that benchmark in the [F38United Kingdom, within the meaning specified in Commission Delegated Regulation (EU) 2018/67 or regulations made by the Treasury under Article 51(6), the FCA] shall consider whether to adopt measures to mitigate the effects referred to in this paragraph, including:

(a)a change to the code of conduct referred to in Article 15, the methodology or other rules of the benchmark;

(b)a transitional period, during which the procedures envisaged under Article 28(2) shall apply.

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F40Article 47U.K.Cooperation with ESMA

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Article 48U.K.Professional secrecy

1.Any confidential information received, exchanged or transmitted pursuant to this Regulation shall be subject to the conditions of professional secrecy laid down in paragraph 2.

2.The obligation of professional secrecy applies to all persons who work or who have worked for the [F41FCA] or for any authority or market undertaking or natural or legal person to whom the [F41FCA] has delegated its powers, including auditors and experts contracted by the [F41FCA].

3.Information covered by professional secrecy may not be disclosed to any other person or authority except by virtue of provisions laid down by [F42the law of the United Kingdom or any part of the United Kingdom].

4.All information [F43exchanged between the FCA and competent authorities] that concerns business or operational conditions and other economic or personal affairs shall be considered confidential and shall be subject to the requirements of professional secrecy, except where the [F44authority from whom the information is received] states at the time of communication that such information may be disclosed or where such disclosure is necessary for legal proceedings.

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