2014年-EBA欧洲银行管理局_2013-658_ESMA-EBA_Principles_on_Benchmarks_Final_Report_45页_806kb

Final Report Summary: ESMA-EBA Principles for Benchmark-Setting Processes in the EU

Core Content

This document outlines the Final Report on the ESMA-EBA Principles for Benchmark-Setting Processes in the EU, developed in response to concerns over benchmark manipulation and the need for a consistent regulatory framework. The report was published in January 2013 following a consultation paper and includes a comprehensive set of principles aimed at ensuring transparency, integrity, and reliability in benchmark-setting processes across the EU.

Main Views and Key Information

1. Purpose and Scope

• The Principles aim to provide a non-binding framework for benchmark-setting activities until a formal regulatory and supervisory framework is established.
• They are intended to align with international standards, particularly those of IOSCO, and to support legislative reforms in the EU.
• The Principles apply to all benchmarks that meet the defined scope, including interest rate benchmarks, market indices, and commodity benchmarks.

2. Definitions and Key Entities

• A Benchmark is defined as a reference rate or index used in financial instruments and transactions.
• Benchmark Submitters are entities that provide data exclusively for benchmark calculation.
• Benchmark Calculation Agents and Publishers are responsible for calculating and disseminating the benchmark.
• Benchmark Users are defined as professional clients under Directive 2004/39/EC, with an additional Stakeholder definition to ensure transparency.

3. Principles Overview

The report outlines several General Principles for benchmark-setting, including:

• Methodology: Where appropriate, actual market transactions should be used for benchmark calculation. The term "sufficiently liquid" has been replaced with a focus on adequately representing the market.
• Governance: The benchmark-setting process should be governed by independent procedures to reduce conflicts of interest. Conflicts, if unavoidable, must be identified, disclosed, and monitored.
• Supervision and Oversight: The Principles maintain the need for public supervision, especially for panel-based benchmarks, and reference existing EU legislation on market abuse.
• Transparency: Transparency is emphasized, particularly regarding methodology and data governance, with exceptions allowed in exceptional circumstances to protect intellectual property rights.
• Contingency and Whistle-Blowing: Contingency provisions have been added for all entities involved in the benchmark-setting process, and whistle-blowing mechanisms are included to support ethical reporting.

4. Feedback and Revisions

• 70 responses were received to the consultation paper, with a wide range of opinions on the scope and applicability of the Principles.
• Respondents highlighted the need for alignment with international standards, particularly IOSCO.
• There were concerns about the broad scope of the Principles, with some suggesting that proprietary or bespoke benchmarks should be excluded.
• Proportionality was emphasized, with a focus on regulating panel-based benchmarks (e.g., EURIBOR, LIBOR) more strictly than others.
• Conflicts of interest were a major concern, with suggestions for segregation of duties, incentives for participation, and clear disclosure requirements.

5. Next Steps

• ESMA and EBA plan to review the application of the Principles eighteen months after publication, though this timeframe may be adjusted.
• The Principles may be revised in light of future EU regulations, changes in market practices, or international standards.

Summary of Key Sections

A. General Principles for Benchmarks

• Methodology: Prioritize transaction-based data, but allow for expert judgment or algorithms when necessary.
• Governance: Ensure independence and manage conflicts of interest effectively.
• Supervision: Support public oversight, especially for high-risk benchmarks.
• Transparency: Public disclosure of methodology and compliance is essential.
• Contingency and Whistle-Blowing: Include robust contingency plans and mechanisms for reporting misconduct.

B. Benchmark Submitters

• Submitters must provide data exclusively for benchmark calculation.
• Data sharing with the Benchmark Administrator is required for post-submission verification.
• Conflicts of interest must be managed, with a focus on avoidance, management, and disclosure.
• Compliance confirmation is required from submitters to the Benchmark Administrator, who will then disclose it publicly.

Conclusion

The ESMA-EBA Principles aim to enhance the integrity, transparency, and reliability of benchmarks in the EU. They reflect a balanced approach, acknowledging the need for proportionality in regulation and alignment with international standards. While not legally binding, they serve as a transition framework and a foundation for future regulatory development.