ANNEX
Information to be provided in the application for recognition under Article 32 of Regulation (EU) 2016/1011
SECTION A
SECTION A — INFORMATION ON THE PROVIDING PERSON AND ITS LEGAL REPRESENTATIVE IN THE UNION
1. GENERAL INFORMATION
(a) | Fullfull name of the applicant and its Legal Entity Identifier (LEI).(LEI), where available;
(b) | Addressaddress of the office in the country of location.location;
(c)legal | Legal Status.status;
(d) | Website,website, if any.any;
(e) | Wherewhere the applicant is supervised in the non-EUthird country where it is located, information about its current authorisation status, including the activities for which it is authorised, the name and address of the competent authority of the non-EUthird country and the link to the register of such competent authority, where available; where more than one authority is responsible for supervision, the details of the respective areas of competence shall be provided.
where more than one authority is responsible for supervision, the details of the respective areas of competence of those authorities;
(f) | Aa description of thethose operations of the applicant in the EUUnion and in non-EUthird countries, whether or not subject to any EU or extra-EU financial regulation,countries that are relevant for the activity of provision of benchmarks, alongtogether with a description of where these operations are conducted.conducted;
(g) | Wherewhere the applicant is part of a group, its group structure, alongtogether with the ownership chart, showing the links between any parent undertaking and subsidiaries.its Thesubsidiaries, and with the undertakings and subsidiaries shown in the chart shall bebeing identified by their full name, legal status and address of the registered office and head office.office;
(h) | Aa self-declaration of good repute of the applicant, including details, ifwhere applicable, of any:
proceedings of a disciplinary nature in connection with the provision of financial services, misconduct or fraud against the applicant (unless dismissed);
refusal of authorisation or registration by a financial authority;
withdrawal of authorisation or registration by a financial authority;
proven adverse findings in civil proceedings in connection with the provision of financial services, with misconduct, or with fraud.
2. LEGAL REPRESENTATIVE IN THE MEMBER STATE OF REFERENCE
(b) | With respect to the legal representative establishedreferred in the Member State of reference as set outto in Article 32(3) of Regulation (EU) 2016/1011, its:
full name;
title, in case of a natural person, or legal status, in case of a legal person;
in case of a legal person, the deed of incorporation, articles of association or other constitutional documents;
whether the legal representative is supervised by a supervisory authority;
address;
email address;
telephone number;
(a)a | Documented evidence supporting the choicecopy of the Memberappointment Stateto ofact reference,as bylegal applicationrepresentative, ofas thereferred criteria laid downto in Article 32(4)32(3) of Regulation (EU) 2016/1011.2016/1011;
details of the performance of the oversight function by the legal representative relating to the provision of benchmarks that may be used in the Union;
the name, title, address, email address and telephone number of a contact person within the legal representative, where applicable.
3. ORGANISATIONAL STRUCTURE AND GOVERNANCE
(a)the | Internalinternal organisational structurestructure, as referred to in Article 4(1) of Regulation (EU) 2016/1011 and further specified in Commission Delegated Regulation (EU) 2021/1350 (^{1}), with respect to the board of directors, senior management committees, oversight function and any other internal body exercisingthat exercises significant management functions and is involved in the provision of a benchmark, including their:
terms of reference or summary thereof;
adherence to any governance codes or similar provisions;
(b)a |description Proceduresof ensuringthe procedures to ensure that the employees of the administratorapplicant 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 operatecomply in respect of the provisions underwith Article 4(7)4(7), points (b) to (e), of Regulation (EU) 2016/1011.2016/1011;
(c) | Thethe number of employees (temporary and permanent) per function that are directly or indirectly involved in the provision of a benchmark.benchmark;
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:
the members of the management body;
the employees responsible for the oversight function or the members performing the oversight function in case the oversight function is carried out by a separate committee;
the employees responsible for the functions within the control framework referred to in Article 6(3) of Regulation (EU) 2016/1011 and for the internal function referred to in Article 7(2) of that Regulation;
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:
a self-declaration on whether the person concerned:
has been convicted of any criminal offence, or a proof of the absence of criminal records referred to in point (ii);
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;
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;
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;
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.
in the absence of a self-declaration by the applicant, 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.
4. CONFLICTS OF INTEREST
(a) | Policiespolicies and procedures that address:
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;
particular circumstances which apply to the applicant or to any particular benchmark provided by the applicant and which may be used in the Union, in relation to which conflicts of interest are most likely to arise, including:
where expert judgment or discretion is exercised in the benchmark’s determination process;
where the applicant is within the same group as a user of a benchmark;
where the applicant is a participant in the market or economic reality that the benchmark intends to measure;
how the provision of benchmarks is operationally separated 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) | Forfor a benchmark or a family of benchmarks, a list of any material actual or potential conflicts of interestsinterest identified, along with the respective mitigation measures.measures;
(c) | Thethe structure of the remuneration policy, specifying the criteria used to determine the remuneration of the persons involved directly or indirectly in the activity of the provision of benchmarks.
5. INTERNAL CONTROL STRUCTURE, OVERSIGHT AND ACCOUNTABILITY FRAMEWORK
(b) | Contingency plans for determining and publishing a benchmark on a temporary basis.
(a) | Policiespolicies and procedures for monitoring the activities of the provision of a benchmark or a family of benchmarks, including those relating to:
the constitution, role, and functioning of the oversight function, as referred to in Article 5 of Regulation (EU) 2016/1011 and further specified in Commission Delegated Regulation (EU) 2018/1637 (2), or the corresponding principles on financial benchmarks agreed by the International Organization of Securities Commissions (IOSCO) on 17 July 2013 (‘IOSCO principles for financial benchmarks’), or the Principles for Oil Price Reporting Agencies agreed by the IOSCO on 5 October 2012 (‘IOSCO principles for PRAs’), as applicable, including a description of the procedures for the appointment, substitution or removal of individuals within the oversight function;
the constitution, role and functioning of the control framework, as referred to in Article 6 of Regulation (EU) 2016/1011, or the corresponding IOSCO Principles for financial benchmarks or for PRAs, as applicable;
the accountability framework as referred to in Article 7 of Regulation (EU) 2016/1011 or the corresponding IOSCO Principles for financial benchmarks or for PRAs, as applicable;
the record keeping obligations as referred to in Article 8 of Regulation (EU) 2016/1011;
the complaints-handling mechanism as referred to in Article 9 of Regulation (EU) 2016/1011;
(c)a |description Proceduresof the procedures for the internal reporting of infringements of Regulation (EU) 2016/1011 by managers, employeesemployees, and any other natural persons whose services are placed at the provider'sapplicant’s disposal or under the control of the provider.applicant, as referred to in Article 14 of Regulation (EU) 2016/1011 and further specified in Commission Delegated Regulation (EU) 2021/1351 (^{3}).
6. OUTSOURCING
Where any activity forming a part of the process for the provision of a benchmark or family of benchmarks is outsourced:
(b) | details of the outsourced functions, unless this information is already included in the relevant contracts;
(c) | policies and procedures regarding the oversight of the outsourced activities unless this information is already included in the relevant contracts.
(a)Where |any activity forming a part of the process for the provision of a benchmark or family of benchmarks is outsourced, a description of the policies, procedures and the relevant outsourcing arrangements, including service-level agreements, which demonstrate compliance with Article 10 of the Regulation (EU) 2016/1011 or the corresponding IOSCO Principles for financial benchmarks or for PRAs, as applicable;applicable.
7. COMPLIANCE WITH IOSCO PRINCIPLES
(a) | Wherewhere available, an assessment by an independent external auditor of compliance with the Principlesprinciples for financial benchmarks agreed by the International Organization of Securities Commissions (IOSCO) on 17 July 2013 or the Principles for Oil Price Reporting Agencies agreed by IOSCO on 5 October 2012, as applicable.applicable;
(b) | Wherewhere available, in cases where the applicant is subject to supervision, a certification provided by the competent authority of the non-EUthird country where the applicant is located, attesting compliance with the IOSCO principles referred to in letterpoint (a).
8. OTHER INFORMATION
(b) | The applicant shall provide this information in a manner and form stipulated by the competent authority.
(a) | The applicant may provide any additional information relevant to its application that it considers appropriate.appropriate in a manner and form stipulated by ESMA.
SECTION B
SECTION B – INFORMATION ON THE BENCHMARKS IN SCOPE
9. DESCRIPTION OF THE ACTUAL OR PROSPECTIVE BENCHMARKS OR FAMILIES OF BENCHMARKS THAT MAY BE USED IN THE UNION
(b) | A description of the benchmark or family of benchmarks provided and that are already used in the Union, including a description of the underlying market or economic reality that the benchmark or the family of benchmarks is intended to measure, along with an indication of the sources used to provide these descriptions, and a description of contributors, if any, to this benchmark or family of benchmarks.
(c) | A list including all the benchmarks that are intended to be marketed for their use in the Union and, where available, their ISINs.
(h) | Any documented evidence that a benchmark or family of benchmarks described under point (b) has a degree of use within the Union territory which qualifies this benchmark or all the benchmarks included in that family of benchmarks either as significant benchmarks, as defined by point (26) Article 3(1) of Regulation (EU) 2016/1011, or as non-significant benchmarks, as defined by point (27) of Article 3(1) of Regulation (EU) 2016/1011. The information to be provided shall be determined, to the extent possible, on the basis of the provisions in Commission Delegated Regulation (EU) 2018/66 (2) for the assessment of the nominal amount of financial instruments other than derivatives, the notional amount of derivatives and the net asset value of investment funds that make reference to the non-EU-country benchmarks, within the Union, including in the event of an indirect reference to any such benchmark within a combination of benchmarks.
(a) | Aa list including all the benchmarks provided by the applicant that are already used in the Union or, where known with respect to Paris Aligned Benchmarks, Climate Transition Benchmarks and commodity benchmarks subject to Annex II to Regulation (EU) 2016/1011, are intended to be marketed for their use in the Union and, where available, their International Securities Identification Numbers (ISINs).(ISINs);
(d) | Aa description of the benchmark or family of benchmarks provided and that are already used in the Union or, where known with respect to Paris Aligned Benchmarks, Climate Transition Benchmarks and commodity benchmarks subject to Annex II to Regulation (EU) 2016/1011, are intended to be marketed for itstheir use in the Union, including a description of the underlying market or economic reality that the benchmark or the family of benchmarks is intended to measure, along with an indication of the sources used to provide thesethose descriptions, and a description of contributors, if any, to thisthat benchmark or family of benchmarks.benchmarks;
(e) | Anyany documented evidence that a benchmark or family of benchmarks describedreferred underto pointsin point (b) and (d) may be considered regulated-data benchmarks, in accordance with the definition set out in point (24) of Article 3(1) of Regulation (EU) 2016/1011,benchmarks and is thus entitled to the exemptions listedset byout in Article 17(1) of theRegulation same(EU) Regulation.2016/1011;
(f) | Anyany documented evidence that a benchmark or family of benchmarks describedreferred underto pointsin point (b) and (d) may be considered a commodity benchmarks, in accordance with the definition set out in point (23) of Article 3(1) of Regulation (EU) 2016/1011,benchmark, and that it is not based on submissions by contributors the majority of which are supervised entities, along with any evidence of the implementation of the special regime requirements as set out byin Article 19 of Regulation (EU) 2016/1011 and Annex II ofto thethat Regulation or the corresponding IOSCO Principles for PRAs.PRAs;
(g) | Anyany documented evidence that a benchmark or family of benchmarks describedreferred underto pointsin point (b) and (d) may be considered an interest rate benchmarks, in accordance with the definition set out in point (22) of Article 3(1) of Regulation (EU) 2016/1011,benchmark, along with any evidence of the implementation of the special regime requirements as set out byin Article 18 of Regulation (EU) 2016/1011 and Annex I ofto thethat Regulation.Regulation;
any documented evidence that a benchmark or family of benchmarks referred to in point (b) is used within the Union territory;
(i) | Thethe rationale behind the administrator's application of any of the exemptions listed under Article 25(1), for significant benchmarks,benchmarks andset out in Article 26(1), for non-significant benchmarks,25(1) of Regulation (EU) 2016/1011 in respect of the benchmark; the information shall be presented, to the extent possible, on the basis of the format established by the implementing technical standards adopted under Articles 25(8) and 26(5) of Regulation (EU) 2016/1011 (^{3}).
(j) | Informationinformation on measures to deal with corrections to a benchmark determination or publication.publication;
(k) | Informationinformation on the procedure to be undertaken by the providerapplicant in the event of changes to or the cessation of a benchmark, as referred to in compliance with Article 28(1) of the Regulation (EU) 2016/10112016/1011, or as referred to in the corresponding IOSCO Principles for financial benchmarks or for PRAs, as applicable.applicable;
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 further specified in Commission Delegated Regulation (EU) 2018/1643 (4).
For the purposes of point (f), the information to be provided shall include an estimate, to the best of the knowledge of the applicant, 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. That estimate shall be determined, to the extent possible, on the basis of Articles 1, 2 and 3 of Commission Delegated Regulation (EU) 2018/66 (5) on the assessment of:
the nominal amount of financial instruments other than derivatives;
the notional amount of derivatives;
the net asset value of investment funds that make reference to the third country benchmarks, within the Union, including in the event of an indirect reference to any such benchmark within a combination of benchmarks.
For the purposes of point (g), the information shall be presented, to the extent possible, on the basis of the format established by Commission Implementing Regulation (EU) 2018/1106 (6).
10. INPUT DATA AND METHODOLOGY
(1) 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 (see page 1 of this Official Journal).
(2) 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).
(3) 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 (OJ L 202, 9.8.2018, p. 9).
(4) 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 (see page 21 of this Official Journal).
(a) | Forfor each benchmark or family of benchmarks, a description of the policies and procedures with respect to the input data,data includingrequirements thoselaid relatingdown to:in Article 11 of Regulation (EU) 2016/1011 and further specified in Commission Delegated Regulation (EU) 2018/1638 (^{7});
(b) | Forfor each benchmark or family of benchmarks, with respect to the methodology:
any documented evidence that the methodology used for determining a benchmark complies with the requirements set out in Article 12 of Regulation (EU) 2016/1011 and further specified in Commission Delegated Regulation (EU) 2021/1352 (8);
any documented evidence that the applicant develops, operates and administers the benchmark and methodology transparently in accordance with Article 13 of Regulation (EU) 2016/1011, as further specified in Commission Delegated Regulation (EU) 2018/1641.