OpenLegislation

Commission Implementing Regulation (EU) 2018/1106 of 8 August 2018 laying down implementing technical standards with regard to templates for the compliance statement to be published and maintained by administrators of significant and non-significant benchmarks pursuant to Regulation (EU) 2016/1011 of the European Parliament and of the Council (Text with EEA relevance)

EU Regulation 2018/1106 · Adopted 8 August 2018 · Extends to United Kingdom

Original text. legislation.gov.uk does not revise this item, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Commission Implementing Regulation (EU) 2018/1106

of 8 August 2018

laying down implementing technical standards with regard to templates for the compliance statement to be published and maintained by administrators of significant and non-significant benchmarks pursuant to Regulation (EU) 2016/1011 of the European Parliament and of the Council

(Text with EEA relevance)

C1C2

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to 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 596/2014f1, and in particular the third subparagraph of Articles 25(8) and 26(5) thereof,

Whereas:

(1)

Article 25(7) of Regulation (EU) 2016/1011 obliges administrators of significant benchmarks who choose not to comply with one or more particular requirements of that Regulation to publish and maintain a compliance statement stating why it is not appropriate for them to comply with those requirements. Article 26(3) of that Regulation imposes a similar obligation on administrators of non-significant benchmarks, but in respect of a broader range of requirements.

(2)

The compliance statement should allow anyone reading it to identify clearly the provisions of Regulation (EU) 2016/1011 that the administrator of the benchmark has chosen not to apply and the reasons why the administrator considers it is appropriate for it not to comply with those provisions.

(3)

Articles 25(7) and 26(3) of Regulation (EU) 2016/1011 require the compliance statement to clearly state why the administrator considers it appropriate not to comply with the provisions in question. The template should therefore require a separate explanation for each of the provisions not applied by the administrator.

(4)

The optional exemptions for significant benchmarks in Article 25(1) of Regulation (EU) 2016/1011 are a subset of the potential exemptions for non-significant benchmarks in Article 26(1) of the same Regulation. In order to ensure consistency between the two implementing technical standards required by Article 25(8) and Article 26(5) for those exemptions and avoid potential unnecessary administrative burden for benchmark administrators, it is desirable to have these implementing technical standards in a single Regulation.

(5)

Administrators may choose to use a single compliance statement for a family of benchmarks, provided that it allows for a clear identification of the provisions that the administrator chose not to apply for each benchmark covered by the compliance statement. A single compliance statement should not cover significant and non-significant benchmarks. If a family of benchmarks comprises significant and non-significant benchmarks, at least two compliance statements should be prepared.

(6)

Administrators should be given sufficient time to ensure compliance with the requirements of this Regulation. This Regulation should therefore start to apply two months after it enters into force,

(7)

This Regulation is based on the draft implementing technical standards submitted by the European Securities and Markets Authority to the Commission.

(8)

The European Securities and Markets Authority has conducted open public consultations on the draft implementing technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the opinion of the Securities and Markets Stakeholder Group established by Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Councilf2,

HAS ADOPTED THIS REGULATION:

Annotations to the whole text

Modifications

C1

The “appropriate regulator” has power to make such provision as they consider appropriate by means of an instrument in writing to prevent, remedy or mitigate any failure of the provisions of this Regulation to operate effectively or any other deficiency arising from the withdrawal of the United Kingdom from the EU, see The Financial Regulators’ Powers (Technical Standards etc.) (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1115), regs. 2, 3, Sch. Pt. 1 para. 1B (as amended by The Financial Regulators’ Powers (Technical Standards etc.) and Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/576), regs. 1(2), 2(2)) (with saving on IP completion day by S.I. 2018/680, regs. 1(2), 11; 2020 c. 1, Sch. 5 para. 1(1))

C2

Regulation: power to modify conferred (11.7.2023) by Financial Services and Markets Act 2023 (c. 29), ss. 3, 86(3), Sch. 1 Pt. 13; S.I. 2023/779, reg. 2(d)

Footnotes

f1

OJ L 171, 29.6.2016, p. 1.

f2

Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

Contents

  1. 1Templates for the compliance statement
  2. 2Entry into force
  3. Signature
  4. Annex ITemplate for the compliance statement referred to in Article 25(7) of Regulation (EU) 2016/1011
  5. Annex IITemplate for the compliance statement referred to in Article 26(3) of Regulation (EU) 2016/1011

1Templates for the compliance statement

1.

The template for the compliance statement referred to in Article 25(7) of Regulation (EU) 2016/1011 is set out in Annex I to this Regulation.

2.

The template for the compliance statement referred to in Article 26(3) of Regulation (EU) 2016/1011 is set out in Annex II to this Regulation.

2Entry 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 29 October 2018.

Signature

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 8 August 2018.

For the Commission

The President

Jean-Claude Juncker

Annex ITemplate for the compliance statement referred to in Article 25(7) of Regulation (EU) 2016/1011

ItemText field
A. General Information

1.

Date of creation of this document and, where applicable, of the latest update to it

1.

Created: [dd/mm/yy]

Last updated: [dd/mm/yy]

2.

Name of the administrator

2.

[As it appears in the ‘Register of administrators and benchmarks’ published by ESMA]

3.

Relevant National Competent Authority

3.

[The competent authority which has authorised or registered the administrator pursuant to Article 34(1) of Regulation (EU) 2016/1011]

The following section:

  • identifies the significant benchmark or significant benchmarks in respect of which provisions do not apply,

  • identifies the provisions that the administrator has chosen not to apply, and

  • explains why it is appropriate for the administrator not to comply with each such provision.

If this document relates to more than one significant benchmark provided by the administrator, a separate section must be completed for each set of benchmarks in respect of which:

  • the provisions that the administrator chooses not to apply are the same for all those benchmarks, and

  • for each provision, the explanation why it is appropriate for the administrator not to comply with the provision is the same for all those benchmarks.

B. [Insert name of the administrator as set out in item 2 of section A] chooses not to apply the following provisions of Regulation (EU) 2016/1011 with respect to the significant benchmark or significant benchmarks identified below

1.

The benchmark or benchmarks in respect of which the provision(s) do not apply

1.

[Insert name of the benchmark, or each of the benchmarks, including its international securities identification number (ISIN) or, where no ISIN is available, any other identifier available]

2.

Indication of where the benchmark statement for the relevant benchmark or each of the relevant benchmarks is published

2.

[e.g. webpage link]

3.

  1. (i)

    The provision or provisions of Regulation (EU) 2016/1011 that do not apply

  2. (ii)

    For each provision, the reasons why it is appropriate for the administrator not to comply with that provision

3(i)

[For each provision, insert the Article number, paragraph and, where applicable, specific point of Regulation (EU) 2016/1011, and the full text of the provision]

3(ii)

[For each provision, insert a specific, detailed and clear explanation of why it is appropriate for the administrator not to comply with the provision, taking into account the nature and impact of the benchmark or benchmarks and the size of the administrator.]

Annex IITemplate for the compliance statement referred to in Article 26(3) of Regulation (EU) 2016/1011

ItemText field
A. General Information

1.

Date of creation of this document and, where applicable, of the latest update to it

1.

Created: [dd/mm/yy]

Last updated: [dd/mm/yy]

2.

Name of the administrator

2.

[As it appears in the ‘Register of administrators and benchmarks’ published by ESMA]

The following section:

  • identifies the non-significant benchmark or non-significant benchmarks in respect of which provisions do not apply,

  • identifies the provisions that the administrator has chosen not to apply, and

  • explains why it is appropriate for the administrator not to comply with each such provision.

If this document relates to a family of non-significant benchmarks provided by the administrator, a separate section must be completed for each set of benchmarks in respect of which:

  • the provisions that the administrator chooses not to apply are the same for all those benchmarks, and

  • for each provision, the explanation why it is appropriate for the administrator not to comply with the provision is the same for all those benchmarks.

B. [Insert name of the administrator as set out in item 2 of section A] chooses to not apply the following provisions of Regulation (EU) 2016/1011 in respect of the non-significant benchmark or non-significant benchmarks identified below

1.

The benchmark or benchmarks in respect of which the provision(s) do not apply

1.

[Insert name of the benchmark, or each of the benchmarks, including its international securities identification number (ISIN) or, where no ISIN is available, any other identifier available]

2.

  1. (i)

    The provision or provisions of Regulation (EU) 2016/1011 that do not apply

  2. (ii)

    For each provision, the reasons why it is appropriate for the administrator not to comply with that provision

2(i)

[For each provision, insert the Article number, paragraph and, where applicable, specific point of Regulation (EU) 2016/1011, and the full text of the provision]

2(ii)

[For each provision, insert a specific, detailed and clear explanation of why it is appropriate for the administrator not to comply with the provision.]