(Under forberedelse) Delegert kommisjonsforordning om utfyllende bestemmelser til europaparlaments- og rådsforordning (EU) 2016/1011 med hensyn til reguleringtekniske standarder for prosedyrer og egenskaper til tilsynsfunksjonen
(Under development) Commission Delegated Regulation 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
Rapport med utkast til delegert kommisjonsforordning vedtatt av Den europeiske verdipapirtilsynsmyndighet (ESMA) og sendt til Kommisjonen 30.3.2017
BAKGRUNN (fra kommisjonsforordningen, engelsk utgave)
(1) The list of appropriate governance arrangements set out in this Regulation is not exhaustive. Administrators have discretion to design the oversight function most appropriate for the benchmarks they provide to achieve the requirements of Article 5 of Regulation (EU) 2016/1011.
(2) External stakeholders acting as members of an oversight function can provide valuable expertise and their participation can increase the effectiveness of the oversight function. Conflicts of interest within the oversight function may arise due to the conflicting interests of these members or due to relationships between members of the oversight function and their clients or other stakeholders. To mitigate such conflicts, independent members that are free from conflicts of interest may be included within the oversight function – and they should be included in those overseeing critical benchmarks due to their importance for market integrity, financial stability, consumers, the real economy and the financing of households and businesses in Member States. Where such independent members are not required by this Regulation, administrators should adopt other procedures to address potential conflicts of interest such as excluding members from certain discussions or removing voting rights of specific members.
(3) Persons that are directly involved in the provision of the benchmark may sit on the oversight function in a non-voting capacity as they can provide useful insight into the work of the administrator. Their status as non-voting members is appropriate to ensure that the administrator does not hold undue influence over the decisions of the oversight function.
(4) One oversight function can include committees with specific, dedicated competencies, for different benchmarks or families of benchmarks or it can include multiple functions carrying out different tasks when persons with appropriate expertise cannot all sit on one committee, for example when they are based in different geographical regions. These oversight functions need single person or committee in charge of the direction of the oversight function and responsible for interaction with the management body of the administrator and with the competent authority to facilitate the centralisation of oversight.
(5) For some lesser used and less vulnerable significant benchmarks, it may be possible for a single natural person to act as the oversight function, if the natural person can devote the appropriate amount of time to the oversight of the relevant benchmarks. Where the oversight function is a natural person, it is exempt from certain procedures which are only appropriate for a committee. Due to the high degree of use of critical benchmarks and the risks they pose in certain instances, critical benchmarks cannot be overseen by a natural person.
(6) To fulfil the responsibilities of the oversight function, members may need to have expert knowledge of the benchmark provision process but also of the underlying market the benchmark seeks to measure. Such expertise may be sourced from users and contributors active in the markets or from providers of regulated data. An oversight function may benefit from the expertise of contributors, as long as appropriate measures are taken to ensure the absence of conflicts of interest, and users have an interest in ensuring the benchmark is robust. It is therefore appropriate that contributors and users be considered as members for such benchmarks.
(7) The oversight function is an essential tool for managing conflicts of interest at the level of the administrator and in order to ensure the integrity of the function persons that were sanctioned for breach of financial services-related laws are prohibited from becoming members of an oversight function.
(8) External stakeholders can have an interest in the benchmark if it is widely used in their markets and they can provide additional expertise. Administrators may establish procedures that allow for them to participate as observers to the oversight function.
(9) Independent committees cannot be completely separated from the organisation of the administrator as the final decisions with regards to the business of the administrator lie with the management body and a separate committee could take decisions without fully appreciating the potentially detrimental impact of such decisions on the business of the administrator. An oversight function embedded within the organisation of the administrator, or of the parent company of the group to which it belongs to, is best placed to challenge the decisions of the administrator with respect to the benchmarks.
(10) In order for the oversight function to perform the role assigned by Regulation (EU) 2016/1011, it is important that it has the ability to fully assess and to challenge the decisions of the management body of the administrator and that, in case of a disagreement, the deliberations of the oversight function in this regard are recorded.
(11) Procedures on the criteria for selection of members and observers, on conflicts of interest management and, in case the oversight function is a committee, procedures covering dispute resolution are necessary to ensure that the oversight function can operate without impediment. There may be other procedures appropriate to the oversight function for certain types of benchmarks or administrators which are not envisaged in this Regulation but are necessary and appropriate for the correct governance of their benchmarks. Administrators are therefore free to introduce alternative procedures provided they achieve the appropriate level of oversight.
(12) This Regulation is based on the draft regulatory technical standards submitted by the European Securities and Markets Authority (ESMA) to the Commission.
(13) ESMA has conducted open public consultations on the draft regulatory 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 in accordance with Article 37 of Regulation (EU) No 1095/2010.
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