Benchmarks have a substantial influence on a broad range of financial instruments, financial contracts and investment funds. They therefore play a significant role for our financial system.
The lack of a regulation on benchmarks to date made it possible to manipulate benchmarks. It caused damages to financial market participants, and affected confidence in financial markets. The Benchmark Regulation is intended to create a uniform European framework as a reaction to the benchmark scandals that have occurred. The Regulation intends to ensure that the benchmarks that are provided and used within the EU are robust, reliable and representative as well as being suitable for their intended use. The new rules therefore contribute to the smooth functioning of the EU’s Internal Market by ensuring a high level of protection for consumers and investors.
Regulation (EU) 2016/1011 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, was published in the Official Journal of the European Union on 29 June 2016 and is directly applicable from 1 January 2018.
In addition to this EU Regulation, supplementary measures were created in Austria by means of the Benchmarking Enforcement Act (RW-VG; Referenzwerte-Vollzugsgesetz) that are necessary for the implementation of the European Regulation. Notably, the FMA was named as the competent supervisory authority. Licencing and registration applications are therefore accordingly to be submitted to the FMA. Furthermore administrative measures and sanctions were also determined.
Definitions and Categories of Benchmarks
Index: an Index is number that is published or made publicly accessible and which it regularly defined by means of the application of a formula or a valuation. The basis for the index is the value of one or more underlying assets, which are not necessarily financial information, but which may also be non-financial values such as weather information or sports results.
Benchmark: a benchmark is an index, that is applied for the pricing of financial instruments or financial contracts or for measuring the performance of an investment fund. Consequently every reference value is an index, but every index is not a benchmark.
Benchmarks originating from a third country may be used by supervised entities in the European Union, provided that the European Commission decides positively with regard to the equivalence of the system of the third country.
The EU Regulation introduces a three-level system of benchmark categories:
Critical benchmarks may be financial instruments and contracts with an average value of at least EUR 500 billion, and which therefore influence the stability of the financial markets in the European Union. A benchmark may also be categorised as critical, in the case that the aforementioned average value is only EUR 400 billion and where in setting the benchmark there is no other suitable alternative or where such an alternative is only suited to a very small number of cases, and so doing would have material detrimental effects on the integrity and stability of the markets. A couple of examples of a critical benchmark, that are declared as being one by means of an EU Regulation, are the EURIBOR (Euro Interbank Offered Rate) and the EONIA (Euro Overnight Index Average).
Compared to critical benchmarks, significant benchmarks shall serve as reference for financial instruments or financial contracts with a total average value of at least EUR 50 billion. A benchmark may also be categorised as significant, in the case that in setting the benchmark there is no other suitable alternative or where such an alternative is only suited to a very small number of cases, and so doing would have material detrimental effects on the integrity and stability of the markets.
Non-significant benchmarks do not fulfil the requirements for either critical or significant benchmarks.
Addressees for the Benchmarks Regulation
The Benchmarks Regulation distinguishes between the following addresses and defines varying degrees of conduct regulations for different addressees.
The administrator is a natural or legal person exercising control over the provision of the benchmark. Based on the administrator’s position in the process or drawing up a benchmark, the administrator is the main addressee of the Benchmarks Regulation.
The provision of the benchmark in particular includes the administration of the mechanisms for the determination of the benchmark, the collection, analysis and processing of input data as well as the calculation of the benchmark.
The contributor is a natural or legal person that submits input data to the administrator that are otherwise not readily available. Conduct rules are also applied to the contributor to a larger extent, provided that the contributor is a supervised entity.
Users use benchmarks when issuing financial instruments or when they are contractual parties to financial contracts, for which an index or a combination of indices form the reference. Examples include, among others, CRR-credit institutions, insurance undertakings, investment firms, UCITS management companies, Alternative Investment Fund managers as well as the lenders in the case of consumer credit agreements.
In relation to a financial instrument or a financial contract, users use benchmarks in order to determine the amount payable in relation to an index or a combination of indices. Benchmarks are also used to measure the composition or a portfolio, the performance of an investment fund or for calculating performance fees based on an index or a combination of indices.
The users of benchmarks are also subject to conduct regulations.
A natural or legal person based within the European Union intending to be active as an administrator, is required to submit an application for a licence or for a registration with its competent authority.
In assessing whether an administrator requires a licence or not, on the one hand the significance of the benchmarks that it provides shall be considered, while on the other hand it shall be taken into account whether or not the administrator is a supervised entity as per the definition in the Benchmarks Regulation.
A registration shall be required in the event that the administrator is an already supervised entity that does provide, or does not intend to provide a critical benchmark.
Further information can be found below.
Applications and enquiries may be addressed to the enquiry provided below.
Division III/3 – Asset Management – On and Off-Site Analysis
Division III/4 – Prudential Supervision Asset Management and Capital Market Prospectuses