Article 32
Recognition of an administrator located in a third country
2.
An administrator of a significant benchmark, of an EU Paris-aligned Benchmark, of an EU Climate Transition Benchmark or of a commodity benchmark subject to Annex II located in a third country that intends to obtain recognition shall comply with this Regulation, with the exception of Article 11(4) and Articles 16, 20, 21 and 23. The administrator may fulfil that condition by applying the IOSCO principles for financial benchmarks or the IOSCO principles for PRAs, as applicable, provided that such application is equivalent to compliance with this Regulation, with the exception of Article 11(4) and Articles 16, 20, 21 and 23.
When determining whether the condition referred to in the first subparagraph is fulfilled and assessing the compliance with the IOSCO principles for financial benchmarks or the IOSCO principles for PRAs, as applicable, ESMA may take into account:
(a)
an assessment of the administrator by an independent external auditor;
(b)
a certification provided by the competent authority of the administrator in the third country where the administrator is located.
Where, and to the extent that, an administrator located in a third country is able to demonstrate that a benchmark it provides is a regulated-data benchmark, or a commodity benchmark subject to Annex II, the administrator shall not be obliged to comply with the requirements which, pursuant to Articles 17 and 19, are not applicable to the provision of regulated-data benchmarks and of commodity benchmarks subject to Annex II.
3.
An administrator located in a third country intending to obtain recognition shall have a legal representative. The legal representative shall be a legal person located in the Union and expressly appointed by that administrator to act on behalf of that administrator with regard to the administrator’s obligations under this Regulation. The legal representative shall, together with the administrator, perform the oversight function relating to the provision of benchmarks performed by the administrator under this Regulation and be accountable to ESMA. ESMA may impose a supervisory measure in accordance with Article 48e, or a fine in accordance with Article 48f, on the administrator or on the legal representative for an infringement listed in Article 42(1), point (a), or in relation to any failure to cooperate or comply in an investigation or with an inspection or request covered by Section 1 of Chapter 4, as applicable.
5.
An administrator located in a third country intending to obtain recognition as referred to in paragraph 2 shall apply for recognition with ESMA. The applicant administrator shall provide all information necessary to satisfy ESMA that it has established, at the time of recognition, all the necessary arrangements to meet the requirements laid down in paragraph 2 with respect to any of its benchmarks that are significant pursuant to Article 24, that are EU Paris-aligned benchmarks or EU Climate Transition benchmarks, or that are commodity benchmarks subject to Annex II. Where applicable, the applicant administrator shall indicate the competent authority in the third country responsible for its supervision.
Within 15 working days of receipt of the application, ESMA shall assess whether the application is complete and shall notify the applicant accordingly. Where the application is incomplete, ESMA shall request the applicant to submit the missing information. Upon the submission by the applicant of the information requested, ESMA shall reassess, within 15 working days of receipt of the additional information, whether the application is complete and shall notify the applicant accordingly.
Within 90 working days of receipt of the complete application, ESMA shall verify that the conditions laid down in paragraphs 2 and 3 are fulfilled.
Where ESMA considers that the conditions laid down in paragraphs 2 and 3 are not fulfilled, it shall refuse the recognition request and set out the reasons for that refusal. In addition, no recognition shall be granted unless the following additional conditions are fulfilled:
(a)
where an administrator located in a third country is subject to supervision, an appropriate cooperation arrangement is in place between ESMA and the competent authority of the third country where the administrator is located, in compliance with the regulatory technical standards adopted pursuant to Article 30(5), to ensure an efficient exchange of information that enables the competent authority of that third country to carry out its duties in accordance with this Regulation;
(b)
the effective exercise by ESMA of its supervisory functions under this Regulation is neither prevented by the laws, regulations or administrative provisions of the third country where the administrator is located, nor, where applicable, by limitations in the supervisory and investigatory powers of that third country’s competent authority.
8.
ESMA shall suspend or, where appropriate, withdraw the recognition granted in accordance with paragraph 5 where it has well-founded reasons, based on documented evidence, to consider that the administrator:
(a)
is acting in a manner which is clearly prejudicial to the interests of users of its benchmarks or to the orderly functioning of markets;
(b)
has seriously infringed the relevant requirements set out in this Regulation;
(c)
made false statements or used any other irregular means to obtain the recognition.
9.
ESMA may develop draft regulatory technical standards to determine the form and content of the application referred to in paragraph 5 and, in particular, the presentation of the information required in paragraph 6.
In the event that such draft regulatory technical standards are developed, ESMA shall submit them to the Commission.
Power is conferred on the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010.