(1)

According to the Regulation (EU) 2016/1011 a figure, in order to be considered as an ‘index’, must be published or made available to the public. The definition of an index is, in turn, the basis for the definition of a benchmark, as referred to in Regulation (EU) 2016/1011.

(2)

It is therefore necessary to specify in which situations a figure is considered to be made available to the public in order to avoid regulatory arbitrage across the jurisdictions in the Union.

(3)

The entity of the provider of the figure should not be considered to form the public for the purpose of Regulation (EU) 2016/1011 as otherwise there would not be any difference between ‘making available’ and ‘making available to the public’. For the same reasons, a narrowly defined number of recipients should not qualify as the public either.

(4)

A figure should be considered to be made available to the public where it can be accessed by a wider group of persons directly or indirectly. The use of a benchmark providing the user access to the referenced figure should constitute indirect access.

(5)

The making available of a figure can take place in various forms at the same time or subsequently, through the provider of the figure or through the passing on of the figure by any of the primary recipients.

(6)

In order to ensure that the definition of ‘provision of a benchmark’ is applied in a uniform manner it is appropriate to specify that administering the arrangements for determining a benchmark, as referred to in Article 3(1)(5)(a), involves the ongoing management of the benchmark provision and the setting, adaptation and ongoing maintenance of the methodology,

(a)

the ongoing management of the provider's structures and of its personnel that are involved in the determination process of a benchmark;

(b)

the setting, adaptation and ongoing maintenance of a specific methodology for determining a benchmark.