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EUROPEAN COMMISSION Brussels, 18.9.2013 SWD(2013) 336 Final COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying Th

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EUROPEAN COMMISSION Brussels, 18.9.2013 SWD(2013) 336 Final COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying Th EUROPEAN COMMISSION Brussels, 18.9.2013 SWD(2013) 336 final COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on indices used as benchmarks in financial instruments and financial contracts {COM(2013) 641 final} {SWD(2013) 337 final} EN EN TABLE OF CONTENTS 1. INTRODUCTION ...................................................................................................................................................................1 2. PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES....................................................................................2 2.1. CONSULTATION OF INTERESTED PARTIES ..................................................................................................................................2 2.2. STEERING GROUP...............................................................................................................................................................2 2.3. IMPACT ASSESSMENT BOARD ...............................................................................................................................................3 3. POLICY CONTEXT .................................................................................................................................................................3 3.1. THE CURRENT EU LEGISLATIVE FRAMEWORK ON BENCHMARKS ......................................................................................................3 3.2. NATURE AND SIZE OF THE MARKET CONCERNED .........................................................................................................................4 3.2.1. What are benchmarks and how are they produced? ....................................................................................................... 4 3.2.2. Calculation Methodology ................................................................................................................................................. 5 3.2.3. Benchmark industry size................................................................................................................................................... 6 4. PROBLEM DEFINITION .........................................................................................................................................................6 4.1. PROBLEM 1. RISK OF BENCHMARK MANIPULATION.....................................................................................................................7 4.1.1. The problem drivers.......................................................................................................................................................... 7 4.2. PROBLEM 2: USE OF BENCHMARKS WHICH ARE NOT ROBUST, RELIABLE OR FIT FOR PURPOSE ...............................................................12 4.2.1. The problem drivers........................................................................................................................................................ 12 5. BASELINE SCENARIO – HOW WOULD PROBLEMS EVOLVE WITHOUT EU ACTION? ...............................................................15 6. SUBSIDIARITY AND PROPORTIONALITY..............................................................................................................................17 7. THE SCOPE OF THE INITIATIVE............................................................................................................................................18 7.1 DEFINING THE SCOPE BY BENCHMARK CHARACTERISTICS .............................................................................................................19 7.1.1. Scoping for the main problem drivers: discretion and conflicts of interest.................................................................... 19 7.1.2. Scoping for impact and vulnerability: published indices ................................................................................................ 19 7.1.3. Scoping for impact and vulnerability: ‘financial’ benchmarks........................................................................................ 19 7.1.4.Scoping: targeting critical or important benchmarks ..................................................................................................... 20 7.2. DEFINING THE SCOPE BY ACTORS..........................................................................................................................................20 7.2.1. Entities producing benchmarks ...................................................................................................................................... 20 7.2.2. Entities contributing to benchmarks .............................................................................................................................. 21 7.2.3 Users................................................................................................................................................................................ 22 8. OBJECTIVES .......................................................................................................................................................................22 8.1. GENERAL, SPECIFIC AND OPERATIONAL OBJECTIVES...................................................................................................................22 8.2. CONSISTENCY OF THE OBJECTIVES WITH OTHER EU POLICIES........................................................................................................22 9. ANALYSIS OF POLICY OPTIONS, IMPACT AND COMPARISON...............................................................................................22 9.1. LIMIT INCENTIVES FOR MANIPULATION ..................................................................................................................................22 9.1.1. Option 1 No action ......................................................................................................................................................... 23 9.1.2. Option 2 Manage and disclose conflicts of interest ....................................................................................................... 23 9.1.3. Option 3 Structural Separation....................................................................................................................................... 23 9.1.4. The preferred options..................................................................................................................................................... 24 9.2. MINIMISE DISCRETION - ENSURE BENCHMARKS ARE BASED ON SUFFICIENT, RELIABLE & REPRESENTATIVE DATA ........................................25 9.2.1. Option 1 No action ......................................................................................................................................................... 25 9.2.2. Option 2 Require the use of transaction data if available and reliable, otherwise well founded and verifiable discretion ................................................................................................................................................................................................. 25 9.2.3. Option 3 Mandatory use of transaction data only......................................................................................................... 26 9.2.4. Option 4 Mandate contributions.................................................................................................................................... 27 9.2.5. The preferred options..................................................................................................................................................... 28 9.3. POLICY OPTIONS TO ENSURE INTERNAL GOVERNANCE AND CONTROLS ADDRESS RISKS ........................................................................29 9.3.1. Option 1 No action ......................................................................................................................................................... 30 9.3.2. Option 2 Authorities to issue comply or explain guidelines............................................................................................ 30 9.3.3. Option 3 Mandate adequate management systems and effective controls .................................................................. 31 9.3.4. The preferred options..................................................................................................................................................... 31 9.4. ENHANCE TRANSPARENCY AND ENSURE THE USE OF ROBUST AND RELIABLE BENCHMARKS...................................................................33 9.4.1. Option 1 No action ......................................................................................................................................................... 33 9.4.2. Option 2 Require transparency on methodology, underlying data process and purpose whilst allowing for delayed or partial transparency of underlying data when justified........................................................................................................... 33 9.4.3. Option 3: Assessment of suitability of benchmarks’ use for certain retail contracts ..................................................... 34 9.4.4. Option 4: Mandatory notification of benchmarks’ use .................................................................................................. 35 9.4.5. The preferred options....................................................................................................................................................
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