MAR 8.1 Application and purpose

Application

MAR 8.1.1 R RP

MAR 8.4 to MAR 8.7 apply in accordance with the application provisions set out in those sections.3

1

Purpose

MAR 8.1.2 G RP

The purpose of this chapter is to set out the requirements that apply to firms involved in the provision of, or contribution to, benchmarks, as follows:3

  1. (1)

    MAR 8.4 (Third country benchmark contributors) sets out the requirements that apply to third country benchmark contributors that are not supervised entities, but would be if they were located in the EU. These rules apply requirements mirroring those which apply to benchmark contributors that are in scope of the benchmarks regulation.3

  2. (2)

    MAR 8.5 (Regulated benchmark administrators) sets out some Handbook requirements that apply to regulated benchmark administrators (who have been authorised under the benchmarks regulation for the activity of administering a benchmark).3

  3. (3)

    MAR 8.6 (Responsibility for benchmark activities: benchmark contributors) sets out requirements in relation to responsibility for contributing input data to a BMR benchmark administrator. 3

  4. (4)

    MAR 8.7 (Procedures for exercising powers in relation to critical benchmarks) sets out the procedure for imposing requirements under articles 21 and 23 of the benchmarks regulation in relation to critical benchmarks.3

[Note: articles 2(2) and 12 of the Market Abuse Regulation and3 article 15 of the Market Abuse Regulation, regarding the ongoing market abuse provisions applicable to firms carrying out the activities specified in MAR 8.1.2G, and the benchmarks regulation setting out the requirements applicable to firms administering, contributing to and using a benchmark3.]

2 2

Actions for damages

MAR 8.1.3 R RP

A contravention of a rule3 in MAR 8 does not give rise to a right of action by a private person under section 138D(2) of the Act (and each rule in MAR 8 is specified under section 138D(3) of the Act as a provision giving rise to no such right of action).

MAR 8.2 Requirements for benchmark submitters [deleted]

1

MAR 8.3 Requirements for benchmark administrators [deleted]

4

1 1

MAR 8.4 Third country benchmark contributors

Application

MAR 8.4.1 R
  1. (1)

    1Subject to (2), this section applies to a third country benchmark contributor that:

    1. (a)

      is not a supervised entity; and

    2. (b)

      would be a supervised entity if it were located in the EU.

  2. (2)

    This section does not apply to a third country benchmark contributor to the extent that it is contributing input data in relation to a commodity benchmark, the provision of which is governed by Annex II of the benchmarks regulation (in accordance with article 19 of that regulation).

Application of the benchmarks regulation

MAR 8.4.2 R

1A third country benchmark contributor in MAR 8.4.1R must comply with the following requirements applicable to supervised contributors (as defined in the benchmarks regulation) as if they were rules:

  1. (1)

    article 16 of the benchmarks regulation, as amended or supplemented as relevant by article 26 and Annex 1 of the benchmarks regulation; and

  2. (2)

    article 23(3) of the benchmarks regulation.

MAR 8.5 Regulated benchmark administrators

Application

MAR 8.5.1 R

1This section applies to a regulated benchmark administrator.

Responsibility for benchmark activities: regulated benchmark administrators

MAR 8.5.2 R
  1. (1)

    1This rule applies to a regulated benchmark administrator other than:

    1. (a)

      an Annex II benchmark administrator;

    2. (b)

      a relevant authorised person.

  2. (2)

    A regulated benchmark administrator must allocate the responsibility described in (3) to a director or senior manager who is performing:

    1. (a)

      an FCA governing function other than the non-executive director function; or

    2. (b)

      the significant management function (where applicable).

  3. (3)

    The responsibility referred to in (2) is responsibility for the firm’s implementation of the applicable requirements of the regulatory system (including the benchmarks regulation) in relation to its activities as a regulated benchmark administrator.

  4. (4)

    A regulated benchmark administrator must promptly notify the FCA of the identity of the person who is allocated the responsibility under (2).

MAR 8.5.3 G

1The rule in MAR 8.5.2R does not apply to a regulated benchmark administrator which is a relevant authorised person. That is because:

  1. (1)

    UK relevant authorised persons are already subject to the requirement to allocate overall responsibility for each of the activities, business areas and management functions of the firm in SYSC 4.7.8R (the table in SYSC 4 Annex 1 (The main business activities and functions of a relevant authorised person) refers to administering a benchmark); and

  2. (2)

    EEA relevant authorised persons and third country relevant authorised persons do not require authorisation to carry out the activity of administering a benchmark unless they are located in the UK. That is because that regulated activity gives effect to article 34 of the benchmarks regulation and, for these purposes, the requirements of article 34 only apply to administrators which are located in the UK.

MAR 8.5.4 R
  1. (1)

    1This rule applies to an Annex II benchmark administrator.

  2. (2)

    An Annex II benchmark administrator must promptly notify the FCA of the identity of the most senior manager(s) responsible for ensuring that the firm satisfactorily implements the requirements of the benchmarks regulation (in accordance with paragraph 14(a) of Annex II to that regulation).

MAR 8.5.5 G
  1. (1)

    1Article 19 of the benchmarks regulation states that Annex II to that regulation applies to the provision of a commodity benchmark instead of Title II to the regulation (save where Annex II is disapplied by article 19).

  2. (2)

    Paragraph 14(a) of Annex II to the benchmarks regulation requires an Annex II benchmark administrator to ensure that it has in place segregated reporting lines amongst its managers, assessors and other employees and from the managers to the administrator’s most senior level management and its board to ensure:

    1. (a)

      that the administrator satisfactorily implements the requirements of the benchmarks regulation; and

    2. (b)

      that responsibilities are clearly defined and do not conflict or cause a perception of conflict.

MAR 8.5.6 G

1An Annex II benchmark administrator which is a relevant authorised person may comply with the requirement in MAR 8.5.4R(2) to notify the FCA of the identity of the most senior manager(s) responsible for implementing the requirements of the benchmarks regulation by including that responsibility in that person’s statement of responsibilities.

Notifications about suspected benchmark manipulation

MAR 8.5.7 G
  1. (1)

    1The guidance in (2) and (3) applies to regulated benchmark administrators other than Annex II benchmark administrators.

  2. (2)

    Article 14(1) of the benchmarks regulation requires a regulated benchmark administrator to establish adequate systems and effective controls to ensure the integrity of input data in order to be able to identify and report to its competent authority any conduct that may involve manipulation or attempted manipulation of a benchmark, under the Market Abuse Regulation.

  3. (3)

    For the avoidance of doubt, the FCA expects a regulated benchmark administrator to notify the FCA without delay of any notification it receives from a contributor about conduct that may involve manipulation or attempted manipulation of a benchmark under the Market Abuse Regulation.

Adequate financial resources for administrators of critical benchmarks

MAR 8.5.8 R

1Notwithstanding any other financial resource requirements that may apply, a regulated benchmark administrator that administers a critical benchmark must:

  1. (1)

    be able to meet its liabilities as they fall due; and

  2. (2)

    maintain, at all times, sufficient financial resources to cover the operating costs of administering the critical benchmark for a period of at least six months.

MAR 8.5.9 G

1A regulated benchmark administrator that administers more than one critical benchmark may comply with its financial resources requirements under MAR 8.5.8R(2) by holding sufficient financial resources to cover the combined operating costs for all critical benchmarks it administers.

MAR 8.5.10 G
  1. (1)

    1MAR 8.5.8R sets out the minimum amount of financial resources a regulated benchmark administrator must hold to carry out administering a benchmark in relation to a critical benchmark.

  2. (2)

    The FCA expects regulated benchmark administrators administering a critical benchmark to:

    1. (a)

      normally hold sufficient financial resources to cover the operating costs of administering the critical benchmark(s) for a period of nine months; and

    2. (b)

      notify the FCA where a regulated benchmark administrator’s financial resources fall below these levels (required by MAR 8.5.13R and SUP 15.3.11R).

MAR 8.5.11 G

1To meet the financial resources requirement in MAR 8.5.8R(2), the FCA expects a regulated benchmark administrator to hold both sufficient liquid financial assets and net capital to cover the operating costs of administering the critical benchmark(s). In particular:

  1. (1)

    net capital can include common stock, retained earnings, disclosed reserves, or other instruments generally classified as common equity tier one capital or additional tier one capital, and may include interim earnings that have been independently verified by an auditor.

  2. (2)

    net capital should be calculated after deductions for:

    1. (a)

      holdings of the regulated benchmark administrator’s own securities or those of any undertakings in the regulated benchmark administrator’s group;

    2. (b)

      any amount owed to the regulated benchmark administrator by an undertaking in its group under any loan or credit arrangement; and

    3. (c)

      any exposure arising under any guarantee, charge or contingent liability.

  3. (3)

    liquid financial assets can include cash or liquid financial instruments held on the balance sheet of the regulated benchmark administrator where the financial instruments:

    1. (a)

      have minimal market and credit risk; and

    2. (b)

      are capable of being liquidated with minimal adverse price effect.

MAR 8.5.12 R

1The FCA may use its powers under section 55L of the Act to impose on a regulated benchmark administrator subject to MAR 8.5.8R a requirement to hold additional financial resources to MAR 8.5.8R if the FCA considers that desirable to meet any of its operational objectives.

Notifications for breaches

MAR 8.5.13 R

1A regulated benchmark administrator subject to MAR 8.5.8R must notify the FCA, as soon as practicable, where it identifies a reasonable possibility of not being able to hold sufficient financial resources to cover the operating costs of administering the critical benchmark(s) for a period of nine months.

MAR 8.5.14 G

1 Regulated benchmark administrators are reminded of their obligation under SUP 15.3.11R to notify the FCA of any significant breaches of rules.

MAR 8.6 Responsibility for benchmark activities: benchmark contributors

Application

MAR 8.6.1 R
  1. (1)

    1This section applies to benchmark contributors save as provided for in (2).

  2. (2)

    This section does not apply to a benchmark contributor to the extent that it is contributing input data in relation to a commodity benchmark the provision of which is governed by Annex II to the benchmarks regulation (in accordance with article 19 of that regulation).

Responsibility for contributing input data

MAR 8.6.2 R

1A benchmark contributor must promptly notify the FCA of the senior personnel responsible for the process for contributing input data to a BMR benchmark administrator.

MAR 8.6.3 G
  1. (1)

    1The FCA expects a benchmark contributor to ensure a member of its senior personnel is responsible for the process of contributing input data to a BMR benchmark administrator regardless of whether the contribution is provided from the UK or from elsewhere.

  2. (2)

    1The requirement in MAR 8.6.2R applies regardless of whether the benchmark contributor contributes input data from the UK or from elsewhere.

MAR 8.6.4 G

1A UK benchmark contributor or third country benchmark contributor which is a relevant authorised person may comply with the requirement in MAR 8.6.2R to notify the FCA of the senior personnel responsible for the process for contributing input data to a BMR benchmark administrator by including that responsibility in that person’s statement of responsibilities.

MAR 8.7 Procedures for exercising powers in relation to critical benchmarks

Application and purpose

MAR 8.7.1 G

1This section applies to authorised persons and to unauthorised persons.

MAR 8.7.2 G
  1. (1)

    1The purpose of this section is to set out the procedures which the FCA will follow when exercising its powers under articles 21 and 23 of the benchmarks regulation.

  2. (2)

    MAR 8.7.9G contains a table of definitions for the purpose of this section. Those defined terms are not shown in italics.

Compulsion powers under the benchmarks regulation

MAR 8.7.3 G
  1. (1)

    1The FCA has been designated as the UK competent authority for the purpose of the benchmarks regulation.

  2. (2)

    The benchmarks regulation confers various directly applicable powers on competent authorities in relation to critical benchmarks. In particular:

    1. (a)

      article 21(3) of the benchmarks regulation gives a competent authority the power to compel the administrator of a critical benchmark to continue publishing the critical benchmark for up to 24 months; and

    2. (b)

      article 23(6) of the benchmarks regulation gives a competent authority the power to take various steps where it considers that the representativeness of a critical benchmark is put at risk. That includes the power to require supervised entities to contribute input data to the administrator of a critical benchmark for up to 24 months.

  3. (3)

    The two powers in (a) and (b) above are referred to in this section as the “compulsion powers”.

Exercise of compulsion powers: general

MAR 8.7.4 G
  1. (1)

    Articles 21 and 23 of the benchmarks regulation set out the circumstances in which competent authorities may exercise the compulsion powers.

  2. (2)

    In some cases, the competent authority may only have a short period in which to decide whether to exercise a compulsion power.

  3. (3)

    Where the FCA considers it necessary to exercise a compulsion power, it will make that decision on the basis of the information available to it at that time.

  4. (4)

    The benchmarks regulation does not require a competent authority to consult on the use of compulsion powers (save that competent authorities must consult the college established under article 46 of the benchmarks regulation when exercising the compulsion power in article 23).

  5. (5)

    Given that the compulsion powers may need to be exercised within short timescales, the FCA does not expect to consult on the use of its compulsion powers (other than consulting other regulatory bodies where required by the Act or the benchmarks regulation).

  6. (6)

    In some cases, it may be necessary to exercise compulsion powers in relation to more than one person. In those circumstances, it may be necessary to address a written notice under this section to more than one person.

  7. (7)

    The FCA will review a decision to exercise a compulsion power in the circumstances described in this section.

Decision to exercise a compulsion power

MAR 8.7.5 G

1If the FCA decides to exercise a compulsion power in respect of a person (P) (whether a supervised entity or an administrator), the FCA will give P a written notice which:

  1. (1)

    gives details of the decision (“the First Decision”);

  2. (2)

    states the FCA’s reasons for the First Decision;

  3. (3)

    states the date on which the First Decision takes effect; and

  4. (4)

    states that P may make representations to the FCA in relation to the First Decision within a period specified in the written notice.

MAR 8.7.6 G

In some cases, the decision in MAR 8.7.5G may take effect immediately. This means that in some cases:

  1. (1)

    P will be required to comply with the decision from the date of the written notice; and

  2. (2)

    the decision will continue to have effect pending consideration of any representations made by P.

Review of the First Decision

MAR 8.7.7 G
  1. (1)

    1Where P makes written representations to the FCA in relation to the First Decision in accordance with MAR 8.7.5G(4), the FCA will review that decision and will decide whether to maintain, vary or revoke it.

  2. (2)

    In conducting the review in (1), the matters which the FCA may have regard to include:

    1. (a)

      the written representations made by P in relation to the First Decision; and

    2. (b)

      any additional information relevant to the exercise of the compulsion power (whether obtained before or after the First Decision).

  3. (3)

    The review in (1) will be carried out by:

    1. (a)

      a senior FCA staff member who did not participate in making the First Decision; or

    2. (b)

      two or more senior FCA staff members including at least one person who did not participate in making the First Decision.

  4. (4)

    When the FCA has completed the review in (1), the FCA will give P a written notice which:

    1. (a)

      gives details of the decision in response to the review (“the Second Decision”);

    2. (b)

      states the FCA’s reasons for the Second Decision; and

    3. (c)

      states the date on which the Second Decision takes effect.

Own initiative review of the exercise of compulsion powers

MAR 8.7.8 G
  1. (1)

    The FCA may, on its own initiative, decide to vary or revoke a requirement imposed under a compulsion power (an Own Initiative Variation or Own Initiative Revocation).

  2. (2)

    For instance, the FCA may decide to vary or revoke a requirement imposed under a compulsion power:

    1. (a)

      where the FCA becomes aware of new information which is material to that requirement; or

    2. (b)

      to extend the duration of the requirement in accordance with article 21(3) or article 23(6)(b) of the benchmarks regulation; or

    3. (c)

      as result of a review under article 21(3) or article 23(9) of the benchmarks regulation.

  3. (3)

    The FCA will treat an Own Initiative Variation as a new First Decision and will follow the procedures in MAR 8.7.5G and MAR 8.7.7G for the purpose of that decision.

Table of defined terms

MAR 8.7.9 G

For the purpose of this section, the terms in the first column of the table below have the meanings in the second column of that table.

Table: glossary of bespoke terms used in this section

administrator

has the meaning in article 3.1(6) of the benchmarks regulation;

compulsion powers

means the competent authority’s powers under articles 21(3) and 23(6) of the benchmarks regulation;

First Decision

the FCA’s decision in MAR 8.7.5G(1);

Own Initiative Revocation

has the meaning in MAR 8.7.8G(1);

Own Initiative Variation

has the meaning in MAR 8.7.8G(1);

Second Decision

the FCA’s decision in MAR 8.7.7G(4).