INVESTMENT FUNDS) [ S.L.330.10 1 SUBSIDIARY LEGISLATION 330.10 MALTA FINANCIAL SERVICES AUTHORITY ACT (INDICES USED AS BENCHMARKS IN FINANCIAL INSTRUMENTS AND FINANCIAL CONTRACTS OR TO MEASURE THE PERFORMANCE
INVESTMENT FUNDS) REGULATIONS 7th March, 2017 LEGAL NOTICE 77
2017, as amended by Legal Notices 185
2018, 312
2022 and 6
2026. 1.
these regulations is the Malta Financial Services Authority Act (Indices used as benchmarks in financial instruments and financial contracts or to measure the performance
investment funds) Regulations. Citation and scope.
these regulations is to implement the relevant provisions
the Benchmarks Regulation as herein defined. 2. requires:
a benchmark; "Authority" means the Malta Financial Services Authority established by article 3
the Act; "benchmark" means any index by reference to which the amount payable under a financial instrument or a financial contract, or the value
a financial instrument, is determined, or an index that is used to measure the performance
an investment fund with the purpose
tracking the return
such index or
defining the asset allocation
a portfolio or
computing the performance fees; "Benchmarks Regulation" means Regulation (EU) 2016/1011
the European Parliament and
the Council
8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance
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; Interpretation. Amended by: L.N. 185
2018; L.N. 312
2022; L.N. 6
INVESTMENT FUNDS) [ S.L.330.10 "Council Directive 86/635/EEC" means Council Directive
8 December 1986 on the annual accounts and consolidated accounts
banks and other financial institutions 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; "Council Directive 91/674/EEC" means Council Directive
19 December 1991 on the annual accounts and consolidated accounts
insurance undertakings 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; "Directive 2013/34/EU" means Directive 2013/34/EU
the European Parliament and
the Council
26 June 2013 on the annual financial statements, consolidated financial statements and related reports
certain types
undertakings, amending Directive 2006/43/EC
the European Parliament and
the Council and repealing Council Directives 78/660/EEC and 83/349/EEC 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)
Directive 2008/48/EC; (b) any credit agreement as defined in point
Directive 2014/17/EU; "financial instrument" means any
the instruments listed in Section C
Annex I to Directive 2014/65/EU for which a request for admission to trading on a trading venue, as defined in point
Directive 2014/65/EU, has been made or which is traded on a trading venue as defined in point
Directive 2014/65/EU or via a systematic internaliser as defined in point
that Directive; "index" means any figure: (
a formula or any other method
calculation, or by an assessment; and (INDICES USED AS BENCHMARKS IN FINANCIAL INSTRUMENTS AND FINANCIAL CONTRACTS OR TO MEASURE THE PERFORMANCE
INVESTMENT FUNDS) [ S.L.330.10 (ii) on the basis
the value
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
a benchmark" means: (
determining a benchmark; and (c) determining a benchmark through the application
a formula or other method
calculation or by an assessment
input data provided for that purpose; "Regulation (EU) No 596/2014" means Regulation (EU) No 596/2014
the European Parliament and
the Council
16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC
the European Parliament and
the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/ 72/EC 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; "supervised entity" means any
the following: (a) a credit institution as defined in point
Regulation (EU) No 575/2013
the European Parliament and
the Council; (b) an investment firm as defined in point
Directive 2014/65/EU; (c) an insurance undertaking as defined in point
Directive 2009/138/EC
the European Parliament and
the Council; (d) a reinsurance undertaking as defined in point
Directive 2009/138/EC; (e) a UCITS as defined in Article 1
Directive 2009/65/EC or, where applicable, a UCITS management company as defined in point (b)
that Directive; (f) an alternative investment fund manager (AIFM) as defined in point (b)
Directive 2011/61/EU
the European Parliament and
the Council; 3 4 [ S.L.330.10 (INDICES USED AS BENCHMARKS IN FINANCIAL INSTRUMENTS AND FINANCIAL CONTRACTS OR TO MEASURE THE PERFORMANCE
INVESTMENT FUNDS) (g) an institution for occupational retirement provision as defined in point (a)
Directive 2003/ 41/EC
the European Parliament and
the Council; (h) a creditor as defined in point (b)
Directive 2008/48/EC for the purposes
credit agreements as defined in point (c)
that Directive; (i) a non-credit institution as defined in point
Directive 2014/17/EU for the purposes
credit agreements as defined in point
that Directive; (j) a market operator as defined in point
Directive 2014/65/EU; (k) a central counterparty as defined in point
Regulation (EU) No 648/2012
the European Parliament and
the Council; (l) a trade repository as defined in point
Regulation (EU) No 648/2012; (m) an administrator authorised or registered in accordance with Article 34
the Benchmarks Regulation.
these regulations and the provisions
the Benchmarks Regulation, the provisions
the Benchmarks Regulation shall prevail. Competent authority. Cap. 330. Amended by: L.N. 312
implementing the relevant provisions
the Benchmarks Regulation and these regulations, and any reference in these regulations to the competent authority shall be read and construed accordingly. Relevant National Authority. Added by: L.N. 312
2022. 3A.
carrying out the assessment in terms
point (a)
paragraph 5
the Benchmarks Regulation. S.L. 204.09.
sub-regulation
Malta, designated as a relevant national authority in terms
the Central Bank
Malta Act (Appointment
Relevant Authority on Benchmarks) Regulations, 2022.
these regulations, the Authority and (INDICES USED AS BENCHMARKS IN FINANCIAL INSTRUMENTS AND FINANCIAL CONTRACTS OR TO MEASURE THE PERFORMANCE
INVESTMENT FUNDS) [ S.L.330.10 5 the Central Bank
Malta shall collaborate, cooperate and exchange information in their possession and for such purpose the Authority and the Central Bank
Malta may also enter into a bilateral agreement or other forms
arrangement for the better collaboration, cooperation and exchange
information. 4.
the EU Regulation to the competent authority.
sub-regulation
the Benchmarks Regulation, exercise any
the powers assigned to it under the Act in relation to persons acting as administrators and to supervised entities. 5. Without prejudice to any other regulatory and investigatory powers
the competent authority, in order to fulfil its duties under the Benchmarks Regulation, the competent authority shall have the following supervisory and investigatory powers: (
, and contribution to, a benchmark, including any service provider to which functions, services or activities in the provision
a benchmark have been outsourced as provided for in Article 10
the Benchmarks Regulation, as well as their principals, and if necessary, summon and question any such person with a view to obtaining information; (
natural persons; (e) enter premises
legal persons, without prejudice to Regulation (EU) No 596/2014, in order to seize documents and other data in any form, where a reasonable suspicion exists that documents and other data related to the subject-matter
the inspection or investigation may be relevant to prove a breach
the Benchmarks Regulation; (f) require existing recordings
telephone Powers
the competent authority. Added by: L.N. 185
2018. Amended by: L.N. 6
2026. 6 [ S.L.330.10 (INDICES USED AS BENCHMARKS IN FINANCIAL INSTRUMENTS AND FINANCIAL CONTRACTS OR TO MEASURE THE PERFORMANCE
INVESTMENT FUNDS) conversations, electronic communications or other data traffic records held by supervised entities; (g) request the freezing or sequestration
assets or both; (h) require temporary cessation
any practice that the competent authority considers contrary to the Benchmarks Regulation; (i) impose a temporary prohibition on the exercise
professional activity; (j) take all necessary measures to ensure that the public is correctly informed about the provision
a benchmark, including by requiring the relevant administrator or a person that has published or disseminated the benchmark or both to publish a corrective statement about past contributions to or figures
the benchmark; (k) designate a benchmark as significant in accordance with Article 24
the Benchmarks Regulation; (l) in the case
reasonable grounds to suspect a breach
any
the requirements established in Chapter 3A
the Benchmarks Regulation, require an administrator to cease, for a maximum period
twelve
benchmarks it makes available for use in the EU, or in the legal or marketing documentation for those benchmarks; (iii) suggest compliance with the requirements applicable to the provision
such benchmarks in the name
the benchmarks it makes available for use in the EU, or in the legal or marketing documentation for those benchmarks. Administrative penalties and other administrative measures. Added by: L.N.185
2018. Amended by: L.N. 312
2022; L.N. 6
the competent authority in accordance with regulation 5, where a person contravenes or fails to comply with any
the requirements contained in Articles 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19a, 19b, 19c, 21, 23, 24, 24a, 25, 26, 27, 28, 29 and 34
the Benchmarks Regulation, where they apply; and, or fails to cooperate or comply with an investigation or with an inspection or request covered by Article 41
the Benchmarks Regulation, the competent authority shall impose the following administrative penalties and administrative measures: (INDICES USED AS BENCHMARKS IN FINANCIAL INSTRUMENTS AND FINANCIAL CONTRACTS OR TO MEASURE THE PERFORMANCE
INVESTMENT FUNDS) [ S.L.330.10 (
the profits gained or losses avoided because
the infringement where those can be determined; (c) a public warning which indicates the administrator or supervised entity responsible and the nature
the infringement; (d) withdrawal or suspension
the authorisation or the registration
an administrator; (
maximum administrative penalty
at least three times the amount
the profits gained or losses avoided because
the infringement where those can be determined; (g) in respect
a natural person, maximum administrative penalty
: (i) for infringements
the following Articles
the Benchmarks Regulation:- Articles 4, 5, 6, 7, 8, 9, 10, points (a), (b), (c) and (e)
point (d)
the Benchmarks Regulation, euro (€100 000); (h) in respect
a legal person, maximum administrative penalty
: (i) for infringements
the following Articles
the Benchmarks regulation:- Articles 4, 5, 6, 7, 8, 9, 10, points (a), (b), (c) and (e)
its total annual turnover according to the last available accounts approved by the management body, whichever is the higher; or 7 8 [ S.L.330.10 (INDICES USED AS BENCHMARKS IN FINANCIAL INSTRUMENTS AND FINANCIAL CONTRACTS OR TO MEASURE THE PERFORMANCE
INVESTMENT FUNDS) (ii) for infringements
point (d)
the Benchmarks Regulation, either euro (€250,000) or, 2%
its total annual turnover according to the last available accounts approved by the management body, whichever is the higher. For the purposes
regulation 6(
a parent undertaking which has to prepare consolidated financial accounts in accordance with Directive 2013/34/EU
the European Parliament and
the Council, the relevant total annual turnover shall be the total annual turnover or the corresponding type
income in accordance with Council Directive 86/635/EEC for banks and Council Directive 91/674/EEC for insurance companies according to the last available consolidated accounts approved by the management body
the ultimate parent undertaking or if the person is an association, 10%
the aggregate turnovers
its members. Exercise
supervisory functions and imposition
penalties and other measures. Added by: L.N.185
administrative penalty and other administrative measures, the competent authority shall take into account all relevant circumstances, including where appropriate: (a) the gravity and duration
the infringement; (b) the criticality
the benchmark to financial stability and the real economy; (c) person; the degree
responsibility
the responsible (d) the financial strength
the responsible person, as indicated, in particular, by the total annual turnover
the responsible legal person or the annual income
the responsible natural person; (e) the level
profits gained or losses avoided by the responsible person, insofar as they can be determined; (f) the level
cooperation
the responsible person with the competent authority, without prejudice to the need to ensure disgorgement
profits or losses avoided by that person; (
the infringement (INDICES USED AS BENCHMARKS IN FINANCIAL INSTRUMENTS AND FINANCIAL CONTRACTS OR TO MEASURE THE PERFORMANCE
INVESTMENT FUNDS) [ S.L.330.10 8.
the Benchmarks Regulation on its
ficial website immediately after the person subject to that decision has been informed
that decision. Such publication shall include at least information on the type and nature
the infringement and the identity
the persons subject to the decision. The foregoing does not apply to decisions imposing measures that are
an investigatory nature.
the identity
the legal person or
the personal data
a natural person, would be disproportionate following a case-bycase assessment conducted on the proportionality
the publication
such data, or where such publication would jeopardise the stability
financial markets or an on-going investigation, it shall do any
the following: (a) defer the publication
the decision until such time as the reasons for that deferral cease to exist; (b) publish the decision on an anonymous basis in accordance with national law where such anonymous publication ensures an effective protection
the personal data concerned; (c) not publish the decision at all in the event that the competent authority is
the opinion that publication in accordance with sub-regulation
financial markets is not jeopardised; or (ii) the proportionality
the publication
such decisions with regard to measures which are deemed to be
a minor nature. Where the competent authority decides to publish a decision on an anonymous basis as referred to in regulation 8
the relevant data for a reasonable period
time where it is foreseeable that the reasons for anonymous publication shall cease to exist during that period.
regulation 9, the competent authority shall also publish, immediately, on its
ficial website such information and any subsequent information on the outcome
such appeal. Any decision annulling a previous decision to impose an administrative penalty or a measure Publication
decisions. Added by: L.N.185
2018. 9 10 [ S.L.330.10 (INDICES USED AS BENCHMARKS IN FINANCIAL INSTRUMENTS AND FINANCIAL CONTRACTS OR TO MEASURE THE PERFORMANCE
INVESTMENT FUNDS) shall also be published.
ficial website
the competent authority for a period
at least five years after its publication. Personal data contained in the publication shall only be kept on the
ficial website
the competent authority for the period which is necessary in accordance with the applicable data protection rules. Right
Appeal. Added by: L.N.185
appeal to the Financial Services Tribunal shall lie from the decisions which the competent authority shall take under these regulations and the provisions
article 21
the Act shall apply mutatis mutandis.
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.