measure the performance of investment funds) Regulations, 2017

Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 19,736, 7 ta’ Marzu, 2017 B 561

L.N. 77 of 2017

MALTA FINANCIAL SERVICES AUTHORITY ACT

(CAP. 330)

Malta Financial Services Authority Act (Indices used as

benchmarks in financial instruments and financial contracts or to

measure the performance of investment funds) Regulations, 2017

IN exercise of the powers conferred by article 20A of the Malta

Financial Services Authority Act, the Minister for Finance, acting on

the advice of the Malta Financial Services Authority, has made the

following regulations:-

(1) The title of these regulations is the Malta Financial Citation and

Services Authority Act (Indices used as benchmarks in financial scope.

instruments and financial contracts or to measure the performance of

investment funds) Regulations, 2017.

(2) The purpose of these regulations is to implement the

relevant provisions of the Benchmarks Regulation as herein defined.

(1)

In these regulations, unless the context otherwise Interpretation.

requires

"the Act" means the Malta Financial Services Authority Act;

"administrator" means a natural or legal person that has control

over the provision of a benchmark;

"benchmark" means any index by reference to which the amount

payable under a financial instrument or a financial contract, or the

value of a financial instrument, is determined, or an index that is used

to measure the performance of an investment fund with the purpose of

tracking the return of such index or of defining the asset allocation of

a portfolio or of computing the performance fees;

"Benchmarks Regulation" means Regulation (EU) 2016/1011 of

the European Parliament and of the Council of 8 June 2016 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 as may be amended from time to time and includes any

implementing measures, implementing technical standards,

regulatory technical standards, guidelines and similar measures that

have been or may be issued thereunder;

"financial contract" means

(a)

any credit agreement as defined in point (c) of

Article 3 of Directive 2008/48/EC;

(b) any credit agreement as defined in point (3) of

Article 4 of Directive 2014/17/EU;

"financial instrument" means any of the instruments listed in

Section C of Annex I to Directive 2014/65/EU for which a request for

admission to trading on a trading venue, as defined in point (24) of

Article 4(1) of Directive 2014/65/EU, has been made or which is

traded on a trading venue as defined in point (24) of Article 4(1) of

Directive 2014/65/EU or via a systematic internaliser as defined in

point (20) of Article 4(1) of that Directive;

"index" means any figure

(a)

that is published or made available to the public;

(b)

that is regularly determined

(i) entirely or partially by the application of a

formula or any other method of calculation, or by an

assessment; and

(ii) on the basis of the value of one or more

underlying assets or prices, including estimated prices,

actual or estimated interest rates, quotes and committed

quotes, or other values or surveys;

"provision of a benchmark" means

(a) administering the arrangements for determining a

benchmark;

(b) collecting, analysing or processing input data for the

purpose of determining a benchmark; and

(c)

determining a benchmark through the application of

a formula or other method of calculation or by an assessment of

input data provided for that purpose;

"supervised entity" means any of the following

(a)

a credit institution as defined in point (1) of Article

4(1) of Regulation (EU) No 575/2013 of the European

Parliament and of the Council;

(b) an investment firm as defined in point (1) of Article

4(1) of Directive 2014/65/EU;

(c)

an insurance undertaking as defined in point (1) of

Article 13 of Directive 2009/138/EC of the European

Parliament and of the Council;

(d) a reinsurance undertaking as defined in point (4) of

Article 13 of Directive 2009/138/EC;

(e)

a UCITS as defined in Article 1(2) of Directive

2009/65/EC or, where applicable, a UCITS management

company as defined in point (b) of Article 2(1) of that Directive;

(f)

an alternative investment fund manager (AIFM) as

defined in point (b) of Article 4(1) of Directive 2011/61/EU of

the European Parliament and of the Council;

(g) an institution for occupational retirement provision

as defined in point (a) of Article 6 of Directive 2003/41/EC of

the European Parliament and of the Council;

(h) a creditor as defined in point (b) of Article 3 of

Directive 2008/48/EC for the purposes of credit agreements as

defined in point (c) of Article 3 of that Directive;

(i)

a non-credit institution as defined in point (10) of

Article 4 of Directive 2014/17/EU for the purposes of credit

agreements as defined in point (3) of Article 4 of that Directive;

(j)

a market operator as defined in point (18) of Article

4(1) of Directive 2014/65/EU;

(k) a central counterparty as defined in point (1) of

Article 2 of Regulation (EU) No 648/2012 of the European

Parliament and of the Council;

(l)

a trade repository as defined in point (2) of Article 2

of Regulation (EU) No 648/2012;

(m)

an administrator.

(2) Words and expressions used in the Act shall, in these

regulations, have the same meaning as is assigned to them in the Act.

(3) In the event that there is any conflict between any of these

regulations and the provisions of the Benchmarks Regulation, the

provisions of the Benchmarks Regulation shall prevail.

The Malta Financial Services Authority established by the

Act shall be the designated competent authority in Malta for the

purposes of implementing the relevant provisions of the Benchmarks

Regulation and these regulations, and any reference in these

regulations to the competent authority shall be read and construed

accordingly.

(1) The competent authority shall exercise and fulfill all

the functions, obligations and powers which are required or may be

imposed on competent authorities in accordance with the Benchmarks

Regulation and it shall satisfy all the obligations and requirements

imposed on competent authorities by the Benchmarks Regulation.

(2) Without prejudice to the provisions of sub-regulation (1),

the competent authority may, for the better implementation of the

Benchmarks Regulation, exercise any of the powers assigned to it

under the Act in relation to persons acting as administrators and to

supervised entities.

€0.18