SUP 15B.5 Powers over Miscellaneous BM persons

1Regulation 6 of the UK Benchmarks Regulations 2018 enables the FCA to impose a requirement on a Miscellaneous BM person and to vary or cancel such a requirement.

Miscellaneous BM person is defined in regulation 5(2) of the UK Benchmarks Regulations 2018 as a person who is not an authorised person and is:

1. (a)

   involved in the provision of, or contribution of input data to, a benchmark;

2. (b)

   a service provider to whom functions or any relevant services and activities in the provision of a benchmark have been outsourced;

3. (c)

   a person who is not the service provider but who is or has been party to a contract in relation to the outsourcing of functions or any relevant services and activities in the provision of a benchmark;

4. (d)

   a legal representative of a benchmark administrator located in a third country which has obtained or has applied for prior recognition as referred to in article 32(1) and as provided for in article 32(3) of the benchmarks regulation;

5. (e)

   a person who administers a benchmark relying on article 51(4) of the benchmarks regulation; or

6. (f)

   a supervised entity.

A person cannot fall within the definition of Miscellaneous BM person if that person is an authorised person.

1Regulation 6(1) of the UK Benchmarks Regulations 2018 provides that the power to impose, vary or cancel requirements in relation to Miscellaneous BM persons is exercisable if it appears to the FCA that:

1. (a)

   the Miscellaneous BM person has contravened or is likely to contravene a relevant requirement;

2. (b)

   it is desirable for the FCA to exercise its powers in order to advance any of its operational objectives; or

3. (c)

   it is desirable for the FCA to exercise its powers to facilitate the performance of its functions under the benchmarks regulation.

Regulation 6(1)(b) of the UK Benchmarks Regulations 2018 would enable the FCA to impose a requirement on a Miscellaneous BM person where it is desirable for the FCA to do so in order to advance any of the FCA’s operational objectives.

1The FCA anticipates that it would generally only need to rely on the ground in regulation 6(1)(b) of the UK Benchmarks Regulations 2018 for the purpose of supervising a Miscellaneous BM person listed in regulation 5(2)(e) of those regulations i.e. a person who administers a benchmark relying on article 51(4) of the benchmarks regulation.

That is because the persons listed in regulation 5(2)(e) will not necessarily be subject to the requirements of the benchmarks regulation or the Act and may therefore fall outside the scope of the other two grounds in regulation 6(1) of the UK Benchmarks Regulations 2018 and outside the scope of the FCA’s powers under the Act.

In view of (2), the FCA does not generally expect that it will need to rely on the ground in regulation 6(1)(b) of the UK Benchmarks Regulations 2018 in relation to the other categories of Miscellaneous BM person (listed in regulation 5(2)(a)-(d) and (f) of the UK Benchmarks Regulations 2018). However, the FCA cannot entirely exclude the possibility that it might need to do so in other circumstances and the FCA will consider any proposed use of the power on its merits on a case by case basis.