What changed, Regulation (EU) 2016/1011
2021-02-13 → 2022-01-01 · no interpretation, just the text delta
| on 2021-02-13 | eu-eurlex:32016r1011:2021-02-13 (2021-02-13 → 2021-12-31) · official source ↗ |
| on 2022-01-01 | eu-eurlex:32016r1011:2022-01-01 (2022-01-01 → 2024-01-08) · official source ↗ |
Open the structured article comparison → matched by provision anchor when continuity is sufficient; otherwise Lex refuses rather than inventing changes
1,221 line(s) in the old middle, 1,107 in the new; 1 unchanged leading and 1 trailing lines trimmed.
− ## TITLE I / **SUBJECT MATTER, SCOPE AND DEFINITIONS** − + **2.** This Regulation shall not apply to:(a) a central bank;(b) a public authority, where it contributes data to, provides, or has control over the provision of, benchmarks for public policy purposes, including measures of employment, economic activity, and inflation;(c) a central counterparty (CCP… − **2.** This Regulation shall not apply to:(a) a central bank;(b) a public authority, where it contributes data to, provides, or has control over the provision of, benchmarks for public policy purposes, including measures of employment, economic activity, and inflation;(c) a central counterparty (CCP… + **1.** For the purposes of this Regulation, the following definitions apply:(1) ‘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 asses… − **1.** For the purposes of this Regulation, the following definitions apply:(1) ‘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 asses… − − ## *CHAPTER 1* / ***Governance of and control by administrators*** + + **9.** ESMA shall develop draft regulatory technical standards to specify the requirements to ensure that the governance arrangements referred to in paragraph 1 are sufficiently robust. + ESMA shall submit those draft regulatory technical standards to the Commission by 1 October 2020. + + Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. + − − ## *CHAPTER 2* / ***Input data, methodology and reporting of infringements*** + + **4.** ESMA shall develop draft regulatory technical standards to specify the conditions to ensure that the methodology referred to in paragraph 1 complies with points (a) to (e) of that paragraph. + + ESMA shall submit those draft regulatory technical standards to the Commission by 1 October 2020. + + Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. + + **4.** ESMA shall develop draft regulatory technical standards to specify the characteristics of the systems and controls referred to in paragraph 1. + ESMA shall submit those draft regulatory technical standards to the Commission by 1 October 2020. − ## *CHAPTER 3* / ***Code of conduct and requirements for contributors*** + Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. + − ## *CHAPTER 1* / ***Regulated-data benchmarks*** − − − ## *CHAPTER 2* / ***Interest rate benchmarks and spot foreign exchange benchmarks*** − − ## *CHAPTER 3* / ***Commodity benchmarks*** − − ## *CHAPTER 3A* / ***EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks*** − − ## *CHAPTER 4* / ***Critical benchmarks*** + + **1a.** Where ESMA considers that a benchmark fulfils all of the criteria set out in point (c) of paragraph 1, it shall submit a documented request to the Commission to recognise that benchmark as critical. + + After receiving that documented request, the Commission shall adopt an implementing act in accordance with paragraph 1. + ESMA shall review its assessment of the criticality of the benchmark at least every two years and shall notify and transmit the assessment to the Commission. + + **2.** Upon receipt of the assessment by the administrator referred to in paragraph 1, the competent authority shall:(a) inform ESMA and the college established under Article 46;(b) within four weeks following the receipt of that assessment, make its own assessment of how the benchmark is to be tran… − **2.** Upon receipt of the assessment of the administrator referred to in paragraph 1, the competent authority shall:(a) inform ESMA and, where applicable, the college established under Article 46; and(b) within four weeks, make its own assessment of how the benchmark is to be transitioned to a new … + During the period referred to in point (b) of the first subparagraph, the administrator shall not cease the provision of the benchmark without the written consent of ESMA or the competent authority, where relevant. − During the period of time referred to in point (b) of the first subparagraph of this paragraph, the administrator shall not cease the provision of the benchmark without the written consent of the competent authority. + + **5.** ESMA shall develop draft regulatory technical standards to specify the criteria on which the assessment referred to in point (b) of paragraph 2 is to be based. + + ESMA shall submit those draft regulatory technical standards to the Commission by 1 October 2020. + + Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. + **3.** A supervised contributor to a critical benchmark that intends to cease contributing input data shall promptly notify the administrator thereof in writing. The administrator shall thereupon inform without undue delay its competent authority. + + The competent authority of the critical benchmark administrator shall inform the competent authority of that supervised contributor, and where applicable ESMA, thereof without undue delay. The administrator shall submit to its competent authority an assessment of the implications on the capability o… − **3.** If a supervised contributor to a critical benchmark intends to cease contributing input data, it shall promptly notify in writing the benchmark administrator, which shall inform without delay its competent authority. Where the supervised contributor is located in another Member State, the com… + **4.** Upon receipt of the assessment referred to in paragraphs 2 and 3 of this Article, the competent authority of the administrator shall, where applicable, promptly inform ESMA or the college established under Article 46 and shall on the basis of that assessment make its own assessment of the cap… − **4.** Upon receipt of an assessment of the benchmark administrator referred to in paragraphs 2 and 3 of this Article and on the basis of such assessment, the competent authority of the administrator shall promptly inform ESMA and, where applicable, the college established under Article 46, and make… − ## *CHAPTER 4A* / ***Statutory replacement of a benchmark*** − − ## *CHAPTER 5* / ***Significant benchmarks*** − − ## *CHAPTER 6* / ***Non-significant benchmarks*** − + + **6.** ESMA shall develop draft regulatory technical standards to specify the criteria under which competent authorities may require changes to the compliance statement as referred to in paragraph 4. + + ESMA shall submit those draft regulatory technical standards to the Commission by 1 October 2020. + Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. − ## TITLE IV / **TRANSPARENCY AND CONSUMER PROTECTION** − ## TITLE V / **USE OF BENCHMARKS IN THE UNION** − + + The Commission may subject the application of the implementing decision referred to in the first subparagraph to the effective fulfilment by that third country of any condition, aiming at ensuring equivalent supervisory and regulatory standards, set out in that implementing decision on an ongoing ba… + **2a.** The Commission may adopt a delegated act in accordance with Article 49 to specify the conditions referred to in points (a) and (b) of the first subparagraph of paragraph 2 of this Article. + + The Commission may subject the application of the implementing decision referred to in the first subparagraph to the effective fulfilment by that third country of any condition, aiming at ensuring equivalent supervisory and regulatory standards, set out in that implementing decision on an ongoing ba… + + + **3a.** The Commission may adopt a delegated act in accordance with Article 49 to specify the conditions referred to in points (a) and (b) of the first subparagraph of paragraph 3 of this Article. + **4.** ESMA shall establish cooperation arrangements with the competent authorities of third countries whose legal framework and supervisory practices have been recognised as equivalent in accordance with paragraph 2 or 3 of this Article. When establishing those arrangements, ESMA shall take into ac… − **4.** ESMA shall establish cooperation arrangements with the competent authorities of third countries whose legal framework and supervisory practices have been recognised as equivalent in accordance with paragraph 2 or 3. Such arrangements shall specify at least:(a) the mechanism for the exchange o… + **1.** Until such time as an equivalence decision is adopted in accordance with Article 30(2) and (3), a benchmark provided by an administrator located in a third country may be used by supervised entities in the Union, provided that that administrator acquires prior recognition by ESMA in accordanc… − **1.** Until such time as an equivalence decision in accordance with Article 30(2) or (3) is adopted, a benchmark provided by an administrator located in a third country may be used by supervised entities in the Union provided that the administrator acquires prior recognition by the competent author… + To determine whether the condition referred to in the first subparagraph is fulfilled and to assess compliance with the IOSCO principles for financial benchmarks or the IOSCO principles for PRAs, as applicable, ESMA may take into account an assessment by an independent external auditor or, a certifi… − For the purposes of determining whether the condition referred to in the first subparagraph is fulfilled, and in order to assess compliance with the IOSCO principles for financial benchmarks or the IOSCO principles for PRAs, as applicable, the competent authority of the Member State of reference may… + **3.** ►M2 An administrator located in a third country intending to obtain prior recognition as referred to in paragraph 1 shall have a legal representative. The legal representative shall be a natural or legal person located in the Union and expressly appointed by that administrator to act on behal… − **3.** An administrator located in a third country intending to obtain prior recognition as referred to in paragraph 1 shall have a legal representative established in its Member State of reference. The legal representative shall be a natural or legal person located in the Union, and which, expressl… + **5.** An administrator located in a third country intending to obtain prior recognition as referred to in paragraph 1 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 t… − **4.** The Member State of reference of an administrator located in a third country shall be determined as follows:(a) where an administrator is part of a group that contains one supervised entity located in the Union, the Member State of reference shall be the Member State where that supervised ent… + Within 90 working days of receipt of the application referred to in the first subparagraph of this paragraph, ESMA shall verify that the conditions laid down in paragraphs 2 and 3 are fulfilled. − **5.** An administrator located in a third country intending to obtain prior recognition as referred to in paragraph 1 shall apply for recognition with the competent authority of its Member State of reference. The applicant administrator shall provide all information necessary to satisfy the compete… + 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: − Within 90 working days of receipt of the application referred to in the first subparagraph of this paragraph, the competent authority shall verify that the conditions laid down in paragraphs 2, 3 and 4 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… − If the competent authority considers that the conditions laid down in paragraphs 2, 3 and 4 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: + (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 … − (a) where an administrator located in a third country is subject to supervision, an appropriate cooperation arrangement is in place between the competent authority of the Member State of reference and the competent authority of the third country where the administrator is located, in compliance with… + **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… − (b) the effective exercise by the competent authority 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 in… − − **6.** In the event that the competent authority of the Member State of reference considers that an administrator located in a third country provides a benchmark that fulfils the conditions of a significant or non-significant benchmark, as provided for in Articles 24 and 26 respectively, it shall, w… − − Within one month of receipt of the notification referred to in the first subparagraph, ESMA shall issue advice to the competent authority about the type of the benchmark and the requirements applicable to its provision, as provided for in Articles 24, 25 and 26. The advice may, in particular, addres… − − The period of time referred to in paragraph 5 shall be suspended from the date on which the notification is received by ESMA, until such time as ESMA issues advice in accordance with this paragraph. − − If the competent authority of the Member State of reference proposes to grant recognition contrary to ESMA's advice referred to in the second subparagraph, it shall inform ESMA thereof, stating its reasons. ESMA shall publish the fact that the competent authority does not comply or intend to comply … − **7.** The competent authority of the Member State of reference shall notify ESMA of any decision to recognise an administrator located in a third country within five working days, along with the list of the benchmarks provided by the administrator which may be used in the Union and, where applicabl… − − **8.** The competent authority of the Member State of reference shall suspend or, where appropriate, withdraw the recognition granted in accordance with paragraph 5 if it has well-founded reasons, based on documented evidence, to consider that the administrator is acting in a manner which is clearly… − − − ## *CHAPTER 1* / ***Authorisation and registration*** + + **1a.** Where one or more of the indices provided by the person referred to in paragraph 1 would qualify as critical benchmarks as referred to in points (a) and (c) of Article 20(1), the application shall be addressed to ESMA. − ## *CHAPTER 2* / ***Supervisory cooperation*** − − − ## *CHAPTER 3* / ***Role of competent authorities*** + **1.** For the purposes of this Regulation, ESMA shall be the competent authority for:(a) administrators of critical benchmarks as referred to in points (a) and (c) of Article 20(1);(b) administrators of the benchmarks referred to in Article 32. − **1.** For administrators and supervised entities, each Member State shall designate the relevant competent authority responsible for carrying out the duties under this Regulation and shall inform the Commission and ESMA thereof. + **2.** Each Member State shall designate the relevant competent authority responsible for carrying out the duties under this Regulation and shall inform the Commission and ESMA thereof. − **2.** Where a Member State designates more than one competent authority, it shall clearly determine their respective roles and shall designate a single authority to be responsible for coordinating cooperation and the exchange of information with the Commission, ESMA and other Member States' compete… + **3.** A Member State that designates more than one competent authority in accordance with paragraph 2 shall clearly determine the respective roles of those competent authorities and shall designate a single authority to be responsible for coordinating the cooperation and the exchange of information… + + **4.** ESMA shall publish on its website a list of the competent authorities designated in accordance with paragraphs 2 and 3. − **3.** ESMA shall publish on its website a list of the competent authorities designated in accordance with paragraphs 1 and 2. + **1.** In order to fulfil their duties under this Regulation, competent authorities referred to in Article 40(2) shall have, in conformity with national law, at least the following supervisory and investigatory powers:▼B(a) access to any document and other data in any form, and to receive or take a … − **1.** In order to fulfil their duties under this Regulation, competent authorities shall have, in conformity with national law, at least the following supervisory and investigatory powers:(a) access to any document and other data in any form, and to receive or take a copy thereof;(b) require or dem… + **2.** The competent authorities referred to in Article 40(2) shall exercise their functions and powers referred to in paragraph 1 of this Article and the powers to impose sanctions referred to in Article 42 in accordance with their national legal frameworks, in any of the following ways:▼B(a) direc… − **2.** Competent authorities shall exercise their functions and powers referred to in paragraph 1 of this Article and the powers to impose sanctions referred to in Article 42, in accordance with their national legal frameworks, in any of the following ways:(a) directly;(b) in collaboration with othe… + For the purposes of point (h)(i) and (ii), where the legal person is a parent undertaking or a subsidiary of a parent undertaking which has to prepare consolidated financial accounts in accordance with Directive 2013/34/EU of the European Parliament and of the Council (14), the relevant total annual… − For the purposes of point (h)(i) and (ii), where the legal person is a parent undertaking or a subsidiary of a parent undertaking which has to prepare consolidated financial accounts in accordance with Directive 2013/34/EU of the European Parliament and of the Council (13), the relevant total annual… + **1.** Member States shall ensure that, when determining the type and level of administrative sanctions and other administrative measures, competent authorities that they have designated in accordance with Article 40(2) take into account all relevant circumstances, including where appropriate:▼B(a) … − **1.** Member States shall ensure that, when determining the type and level of administrative sanctions and other administrative measures, competent authorities take into account all relevant circumstances, including where appropriate:(a) the gravity and duration of the infringement;(b) the critical… + **1.** Member States that have chosen to lay down criminal sanctions for infringements of the provisions referred to in Article 42 shall ensure that appropriate measures are in place so that the competent authorities designated in accordance with Article 40(2) and (3) have all the necessary powers t… − **1.** Where Member States have chosen, in accordance with Article 42, to lay down criminal sanctions for infringements of the provisions referred to in that Article, they shall ensure that appropriate measures are in place so that competent authorities have all the necessary powers to liaise with j… + **2.** Competent authorities designated in accordance with Article 40(2) and (3) shall assist other competent authorities and ESMA. In particular, they shall exchange information and cooperate in any investigation or supervisory activities. Competent authorities may also cooperate with other compete… − **2.** Competent authorities shall provide assistance to competent authorities of other Member States. In particular, they shall exchange information and cooperate in any investigation or supervisory activities. Competent authorities may also cooperate with competent authorities of other Member Stat… + **5.** Member States shall provide ESMA with aggregated information regarding all administrative sanctions and other administrative measures imposed pursuant to Article 42 on an annual basis. That obligation shall not apply to measures of an investigatory nature. ESMA shall publish that information … − **5.** Member States shall annually provide ESMA with aggregated information regarding all administrative sanctions and other administrative measures imposed pursuant to Article 42. That obligation does not apply to measures of an investigatory nature. ESMA shall publish that information in an annua… + **1.** Within 30 working days from the inclusion of a benchmark referred to in points (a) and (c) of Article 20(1) in the list of critical benchmarks, with the exception of benchmarks where the majority of contributors are non-supervised entities, the competent authority of the administrator shall e… − **1.** Within 30 working days from the inclusion of a benchmark referred to in points (a) and (c) of Article 20(1) in the list of critical benchmarks, with the exception of benchmarks where the majority of contributors are non-supervised entities, the competent authority shall establish a college. + **2.** The college shall comprise representatives of the competent authority of the administrator, ESMA, unless it is the competent authority of the administrator, and the competent authorities of supervised contributors. − **2.** The college shall comprise the competent authority of the administrator, ESMA, and the competent authorities of supervised contributors. + **1.** The competent authorities referred to in Article 40(2) shall cooperate with ESMA for the purposes of this Regulation, in accordance with Regulation (EU) No 1095/2010. − **1.** The competent authorities shall cooperate with ESMA for the purposes of this Regulation, in accordance with Regulation (EU) No 1095/2010. + **2.** The competent authorities referred to in Article 40(2) shall, without undue delay, provide ESMA with all information necessary to carry out its duties, in accordance with Article 35 of Regulation (EU) No 1095/2010. − **2.** The competent authorities shall, without delay, provide ESMA with all information necessary to carry out its duties, in accordance with Article 35 of Regulation (EU) No 1095/2010. + ### Article 48a — Exercise of the powers by ESMA − ## TITLE VII / **DELEGATED AND IMPLEMENTING ACTS** + The powers conferred on ESMA, on any official of ESMA or on any other person authorised by ESMA by Articles 48b to 48d shall not be used to require the disclosure of information or documents that are subject to legal privilege. − ### Article 49 — Exercise of the delegation + ### Article 48b — Request for information − **1.** The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. + **1.** ESMA may by simple request or by decision require the following persons to provide all necessary information to enable ESMA to carry out its duties under this Regulation:(a) persons involved in the provision of benchmarks, as referred to in Article 40(1);(b) third parties to whom the persons … − **2.** The power to adopt delegated acts referred to in Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(2), 27(2b), 33(7), 51(6) and 54(3) shall be conferred on the Commission for a period of five years from 10 December 2019. The Commission shall draw up a report in respect of the delegation of pow… + In accordance with Article 35 of Regulation (EU) No 1095/2010 and at the request of ESMA, competent authorities shall submit that request for information to contributors to critical benchmarks referred to in points (a) and (c) of Article 20(1) of this Regulation and shall share the information recei… − **2b.** The power to adopt delegated acts referred to in Articles 18a(3) and 54(7) shall be conferred on the Commission for an indeterminate period of time from 13 February 2021. + **2.** Any simple request for information as referred to paragraph 1 shall:(a) refer to this Article as the legal basis of that request;(b) state the purpose of that request;(c) specify what information is required;(d) include a time limit within which the information is to be provided;(e) include a… − **3.** The delegations of power referred to in Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(2), 27(2b), 33(7), 51(6) and 54(3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It … + **3.** When requiring to supply information under paragraph 1 by decision, ESMA shall:(a) refer to this Article as the legal basis of that request;(b) state the purpose of that request;(c) specify what information is required;(d) set a time limit within which the information is to be provided;(e) in… − **3a.** The delegation of power referred to in Articles 18a(3) and 54(7) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect on the day following the publication of … + **4.** The persons referred to in paragraph 1 or their representatives and, in the case of legal persons or associations having no legal personality, the persons authorised to represent them by law or by their constitution, shall supply the information requested. Lawyers duly authorised to act may s… − **4.** Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. + **5.** ESMA shall, without undue delay, send a copy of the simple request or of its decision to the competent authority of the Member State of the persons referred to in paragraph 1. − **5.** As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. + ### Article 48c — General investigations − **6.** A delegated act adopted pursuant to Article 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(2), 27(2b), 33(7), 51(6) or 54(3) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three months of notification of that act … + **1.** In order to carry out its duties under this Regulation, ESMA may conduct necessary investigations of the persons referred to in Article 48b(1). To that end, the officials and other persons authorised by ESMA shall be empowered to:(a) examine any records, data, procedures and any other materia… − **6a.** A delegated act adopted pursuant to Article 18a(3) or 54(7) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three months of notification of that act to the European Parliament and to the Council or if, befo… + **2.** The officials and other persons authorised by ESMA for the purposes of the investigations referred to in paragraph 1 shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the investigation. That authorisation shall indicate the per… − ### Article 50 — Committee procedure + **3.** The persons referred to in Article 48b(1) are required to submit to investigations launched on the basis of a decision of ESMA. The decision shall specify the subject matter and purpose of the investigation, the periodic penalty payments provided for in Article 48g, the legal remedies availab… − **1.** The Commission shall be assisted by the European Securities Committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. + **4.** In good time before an investigation referred to in paragraph 1, ESMA shall inform the competent authority of the Member State where the investigation is to be carried out of the investigation and of the identity of the authorised persons. Officials of the competent authority concerned shall,… − **2.** Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply, having regard to the provisions of Article 8 thereof. + **5.** If a request for records of telephone or data traffic referred to in point (e) of paragraph 1 requires authorisation from a national judicial authority according to applicable national law, such authorisation shall be applied for. Such authorisation may also be applied for as a precautionary … − ## TITLE VIII / **TRANSITIONAL AND FINAL PROVISIONS** + **6.** Where a national judicial authority receives an application for the authorisation of a request for records of telephone or data traffic referred to in point (e) of paragraph 1 that authority shall verify the following:(a) the decision referred to in paragraph 3 is authentic;(b) any measures t… − ### Article 51 — Transitional provisions + For the purposes of point (b), the national judicial authority may ask ESMA for detailed explanations, in particular relating to the grounds ESMA has for suspecting that an infringement of this Regulation has taken place and the seriousness of the suspected infringement and the nature of the involve… − **1.** An index provider providing a benchmark on 30 June 2016 shall apply for authorisation or registration in accordance with Article 34 by 1 January 2020. + ### Article 48d — On-site inspections − **2.** By 1 January 2020, the competent authority of the Member State where an index provider applying for authorisation in accordance with Article 34 is located shall have the power to decide to register that index provider as an administrator even if it is not a supervised entity, under the follow… + **1.** In order to carry out its duties under this Regulation, ESMA may conduct all necessary on-site inspections at any business premises of the persons referred to in Article 48b(1). − The competent authority shall notify ESMA of its decision adopted in accordance with the first subparagraph. + **2.** The officials and other persons authorised by ESMA to conduct an on-site inspection may enter any business premises of the persons subject to an investigation decision adopted by ESMA and shall have all the powers stipulated in Article 48c(1). They shall have the power to seal any business pr… − The competent authority shall keep evidence of the reasons for its decision adopted in accordance with the first subparagraph, in such a form that it is possible to fully understand the evaluations of the competent authority that the index or indices provided by the index provider are not widely use… + **3.** In sufficient time before the inspection, ESMA shall give notice of the inspection to the competent authority of the Member State where the inspection is to be conducted. Where the proper conduct and efficiency of the inspection so require, ESMA, after informing the relevant competent authori… − **3.** An index provider may continue to provide an existing benchmark which may be used by supervised entities until 1 January 2020 or, where the index provider submits an application for authorisation or registration in accordance with paragraph 1, unless and until such authorisation or registrati… + **4.** The officials and other persons authorised by ESMA to conduct an on-site inspection shall exercise their powers upon production of a written authorisation, specifying the subject matter and purpose of the inspection and the periodic penalty payments provided for in Article 48g where the perso… − **4.** Where an existing benchmark does not meet the requirements of this Regulation, but ceasing or changing that benchmark to fulfil the requirements of this Regulation would result in a force majeure event, frustrate or otherwise breach the terms of any financial contract or financial instrument … + **5.** The persons referred to in Article 48b(1) shall submit to on-site inspections ordered by a decision of ESMA. That decision shall specify the subject matter and purpose of the inspection, the date on which it is to begin and indicate the periodic penalty payments provided for in Article 48g, t… − **4a.** An index provider may continue to provide an existing benchmark that has been recognised as a critical benchmark by an implementing act adopted by the Commission in accordance with Article 20 until 31 December 2021 or, where the index provider submits an application for authorisation in acco… + **6.** Officials of, as well as those authorised or appointed by, the competent authority of the Member State where the inspection is to be conducted, shall, at the request of ESMA, actively assist the officials and other persons authorised by ESMA. Officials of that competent authority may also att… − **4b.** An existing benchmark that has been recognised as a critical benchmark by an implementing act adopted by the Commission in accordance with Article 20 may be used for existing and new financial instruments, financial contracts, or for measuring the performance of an investment fund until 31 D… + **7.** ESMA may also require competent authorities to carry out specific investigatory tasks and on-site inspections as provided for in this Article and in Article 48c(1) on its behalf. To that end, competent authorities shall enjoy the same powers as ESMA as set out in this Article and in Article 4… − **5.** Unless the Commission has adopted an equivalence decision as referred to in paragraph (2) or (3) of Article 30, an administrator has been recognised pursuant to Article 32 or a benchmark has been endorsed pursuant to Article 33, the use in the Union by supervised entities of a third-country b… + **8.** Where the officials and other accompanying persons authorised by ESMA find that a person opposes an inspection ordered pursuant to this Article, the competent authority of the Member State concerned shall afford them the necessary assistance, requesting, where appropriate, the assistance of t… − The first subparagraph shall not apply to benchmarks provided by administrators who relocate from the Union to a third country during the transitional period. The competent authority shall notify ESMA in accordance with Article 35. ESMA shall draw up a list of third-country benchmarks to which the f… + **9.** If the on-site inspection provided for in paragraph 1 or the assistance provided for in paragraph 7 requires authorisation by a national judicial authority according to the applicable national law, such authorisation shall be applied for. Such authorisation may also be applied for as a precau… − **6.** The Commission shall be empowered to adopt delegated acts in accordance with Article 49 concerning measures to determine the conditions on which the relevant competent authority may assess whether the cessation or the changing of an existing benchmark to conform with the requirements of this … + **10.** Where a national judicial authority receives an application for the authorisation of an on-site inspection provided for in paragraph 1 or the assistance provided for in paragraph 7, that authority shall verify the following:(a) the decision adopted by ESMA referred to in paragraph 5 is authe… − ### Article 52 — Deadline for updating the prospectuses and key information documents + For the purposes of point (b), the national judicial authority may ask ESMA for detailed explanations, in particular relating to the grounds ESMA has for suspecting that an infringement of this Regulation has taken place and the seriousness of the suspected infringement and the nature of the involve… − Article 29(2) is without prejudice to outstanding prospectuses approved under Directive 2003/71/EC prior to 1 January 2018. For prospectuses approved prior to 1 January 2018 under Directive 2009/65/EC, the underlying documents shall be updated at the first occasion or at the latest within 12 months … + ### Article 48e — Supervisory measures by ESMA − ### Article 53 — ESMA reviews + **1.** Where, in accordance with Article 48i(5), ESMA finds that a person has committed one of the infringements listed in point (a) of Article 42(1), it shall take one or more of the following actions:(a) adopt a decision requiring the person to bring the infringement to an end;(b) adopt a decision… − **1.** ESMA shall seek to build a common European supervisory culture and consistent supervisory practices and ensure consistent approaches among competent authorities in relation to the application of Articles 32 and 33. To that end, the recognitions granted in accordance with Article 32 and the en… + **2.** When taking the actions referred to in paragraph 1, ESMA shall take into account the nature and seriousness of the infringement, having regard to the following criteria:(a) the duration and frequency of the infringement;(b) whether financial crime has been occasioned, facilitated or otherwise… − ESMA shall issue an opinion to each competent authority that has recognised a third country administrator or endorsed a third country benchmark assessing how that competent authority applies the relevant requirements of Articles 32 and 33 respectively and the requirements of any relevant delegated a… + **3.** Without undue delay, ESMA shall notify any action taken pursuant to paragraph 1 to the person responsible for the infringement, and shall communicate it to the competent authorities of the Member States and to the Commission. It shall publicly disclose any such action on its website within 10… − **2.** ESMA shall have the power to require the documented evidence from a competent authority for any of the decisions adopted in accordance with the first subparagraph of Article 51(2), Article 24(1) and Article 25(2). + The disclosure to the public referred to in the first subparagraph shall include the following: − ### Article 54 — Review + (a) a statement affirming the right of the person responsible for the infringement to appeal the decision; − **1.** By 1 January 2020, the Commission shall review and submit a report to the European Parliament and to the Council on this Regulation and in particular on:(a) the functioning and effectiveness of the critical benchmark, mandatory administration and mandatory contribution regime under Articles 2… + (b) where relevant, a statement affirming that an appeal has been lodged and specifying that such an appeal does not have suspensive effect; − **2.** The Commission shall review the evolution of international principles applicable to benchmarks and of legal frameworks and supervisory practices in third countries concerning the provision of benchmarks and report to the European Parliament and to the Council every five years after 1 January … + (c) a statement asserting that it is possible for ESMA’s Board of Appeal to suspend the application of the contested decision in accordance with Article 60(3) of Regulation (EU) No 1095/2010. − **3.** The Commission shall be empowered to adopt delegated acts in accordance with Article 49 in order to extend the 42-month period referred to in Article 51(2) by 24 months, if the report referred to in point (b) of paragraph 1 of this Article provides evidence that the transitional registration … + ### Article 48f — Fines − **4.** By 31 December 2022, the Commission shall review the minimum standards for EU Climate Transition Benchmarks and for EU Paris-aligned Benchmarks in order to ensure that the selection of the underlying assets is coherent with environmentally sustainable investments as defined in a Union-wide fr… + **1.** Where, in accordance with Article 48i(5), ESMA finds that any person has, intentionally or negligently, committed one or more of the infringements listed in point (a) of Article 42(1), it shall adopt a decision imposing a fine in accordance with paragraph 2 of this Article. − **5.** Before 31 December 2022, the Commission shall present a report to the European Parliament and to the Council on the impact of this Regulation and the feasibility of an ‘ESG benchmark’, taking into account the evolving nature of sustainability indicators and the methods used to measure them. T… + An infringement shall be considered to have been committed intentionally if ESMA finds objective factors which demonstrate that a person acted deliberately to commit the infringement. − **6.** By 15 June 2023, the Commission shall submit a report to the European Parliament and to the Council on the scope of this Regulation, in particular with respect to the continued use by supervised entities of third-country benchmarks and on potential shortcomings of the current framework. That … + **2.** The maximum amount of the fine referred to in paragraph 1 shall be:(a) in the case of a legal person, EUR 1 000 000 , or, in the Member States whose currency is not the euro, the corresponding value in the national currency on 30 June 2016, or 10 % of the total annual turnover of that legal p… − **7.** The Commission is empowered to adopt a delegated act in accordance with Article 49 by 15 June 2023 in order to extend the transitional period referred to in Article 51(5) until 31 December 2025 at the latest if the report referred to in paragraph 6 of this Article demonstrates that, otherwise… + Notwithstanding the first subparagraph, the maximum amount of the fine for infringements of point (d) of Article 11(1) or of Article 11(4) shall be EUR 250 000 or, in the Member States whose official currency is not the euro, the corresponding value in the national currency on 30 June 2016 or 2 % of… − ### Article 55 — Notification of benchmarks referenced and their administrators + For the purposes of point (a), where the legal person is a parent undertaking or a subsidiary of a parent undertaking which is required to prepare consolidated financial accounts in accordance with Directive 2013/34/EU, the relevant total annual turnover shall be the total annual turnover or the cor… − When a benchmark is referenced in a financial instrument covered by Article 4(1) of Regulation (EU) No 596/2014, the notifications under Article 4(1) of that Regulation shall include the name of the benchmark referenced and its administrator. + **3.** When determining the level of a fine pursuant to paragraph 1, ESMA shall take into account the criteria set out in Article 48e(2). − ### Article 56 — Amendments to Regulation (EU) No 596/2014 + **4.** Notwithstanding paragraph 3, where the legal person has directly or indirectly benefited financially from the infringement, the amount of the fine shall be at least equal to that benefit. − Regulation (EU) No 596/2014 is amended as follows: + **5.** Where an act or omission of a person constitutes more than one infringement listed in point (a) of Article 42(1), only the higher fine calculated in accordance with paragraph 2 of this Article and relating to one of those infringements shall apply. − (1) Article 19 is amended as follows: (a) the following paragraph is inserted: **‘1a.** The notification obligation referred to in paragraph 1 shall not apply to transactions in financial instruments linked to shares or to debt instruments of the issuer referred to in that paragraph where at the tim… + ### Article 48g — Periodic penalty payments − (2) Article 35 is amended as follows: (a) in paragraphs (2) and (3), the phrase ‘and Article 19(13) and (14)’ is replaced by ‘, Article 19(13) and (14) and Article 38’; (b) paragraph (5) is replaced by the following: **‘5.** A delegated act adopted pursuant to Article 6(5) or (6), Article 12(5), the… + **1.** ESMA shall, by decision, impose periodic penalty payments to compel:(a) a person to put an end to an infringement in accordance with a decision taken pursuant to point (a) of Article 48e(1);(b) persons referred to in Article 48b(1):(i) to supply complete information which has been requested b… − (3) In Article 38, the following paragraphs are added: ‘By 3 July 2019, the Commission shall, after consulting ESMA, submit a report to the European Parliament and to the Council on the level of the thresholds set out in Article 19(1a)(a) and (b) in relation to managers' transactions where the issue… + **2.** A periodic penalty payment shall be effective and proportionate. The periodic penalty payment shall be imposed for each day of delay. − ### Article 57 — Amendments to Directive 2008/48/EC + **3.** Notwithstanding paragraph 2, the amount of the periodic penalty payments shall be 3 % of the average daily turnover in the preceding business year, or, in the case of natural persons, 2 % of the average daily income in the preceding calendar year. It shall be calculated from the date stipulat… − Directive 2008/48/EC is amended as follows: + **4.** A periodic penalty payment shall be imposed for a maximum period of six months following the notification of ESMA’s decision. Following the end of the period, ESMA shall review the measure. − (1) In Article 5(1), the following subparagraph is inserted after the second subparagraph: ‘Where the credit agreement references a benchmark as defined in point 3 of Article 3(1) of Regulation (EU) 2016/1011 of the European Parliament and of the Council (*1), the name of the benchmark and of its ad… + ### Article 48h — Disclosure, nature, enforcement and allocation of fines and periodic penalty payments − (2) In Article 27(1), the following subparagraph is inserted after the second subparagraph: ‘By 1 July 2018 Member States shall adopt and publish the provisions necessary to comply with the third subparagraph of Article 5(1) and shall communicate them to the Commission. They shall apply those provis… + **1.** ESMA shall disclose to the public every fine and every periodic penalty payment that has been imposed pursuant to Articles 48f and 48g, unless such disclosure to the public would seriously jeopardise the financial markets or cause disproportionate damage to the parties involved. Such disclosu… − ### Article 58 — Amendments to Directive 2014/17/EU + **2.** Fines and periodic penalty payments imposed pursuant to Articles 48f and 48g shall be of an administrative nature. − Directive 2014/17/EU is amended as follows: + **3.** Where ESMA decides not to impose any fines or penalty payments, it shall inform the European Parliament, the Council, the Commission and the competent authorities of the Member State concerned thereof and shall set out the reasons for its decision. − (1) In the second subparagraph of Article 13(1), the following point is inserted: ‘(ea) where contracts that reference a benchmark as defined in point (3) of Article 3(1) of Regulation (EU) 2016/1011 of the European Parliament and of the Council (*2) are available, the names of the benchmarks and of… + **4.** Fines and periodic penalty payments imposed pursuant to Articles 48f and 48g shall be enforceable. − (2) In Article 42(2), the following subparagraph is inserted after the first subparagraph: ‘By 1 July 2018, Member States shall adopt and publish the provisions necessary to comply with point (ea) of the second subparagraph of Article 13(1) and shall communicate them to the Commission. They shall ap… + Enforcement shall be governed by the rules of procedure in force in the Member State or third country in which it is carried out. − (3) In Article 43(1), the following subparagraph is added: ‘Point (ea) of the second subparagraph of Article 13(1) shall not apply to credit agreements existing before 1 July 2018.’. + **5.** The amounts of the fines and the periodic penalty payments shall be allocated to the general budget of the European Union. − ### Article 59 — Entry into force + ### Article 48i — Procedural rules for taking supervisory measures and imposing fines − This Regulation shall enter into force on the day following that of its publication in the *Official Journal of the European Union*. + **1.** Where, in carrying out its duties under this Regulation, ESMA finds that there are serious indications of the possible existence of facts liable to constitute one or more of the infringements listed in point (a) of Article 42(1), ESMA shall appoint an independent investigation officer within … − It shall apply from 1 January 2018. + **2.** The investigation officer referred to in paragraph 1 shall investigate the alleged infringements, take into account any comments submitted by the persons who are subject to the investigation, and shall submit a complete file with his or her findings to ESMA’s Board of Supervisors. − Notwithstanding the second paragraph of this Article, Articles 3(2), 5(5), 11(5), 13(3), 15(6), 16(5), Article 20 (excluding point (b) of paragraph (6)), Articles 21 and 23, Articles 25(8), 25(9), 26(5), 27(3), 30(5), 32(9), 33(7), 34(8), Article 46, and Articles 47(3) and 51(6) shall apply from 30 … + **3.** In order to carry out his or her tasks, the investigation officer shall have the power to request information in accordance with Article 48b and to conduct investigations and on-site inspections in accordance with Articles 48c and 48d. − Notwithstanding the second paragraph of this Article, Article 56 shall apply from 3 July 2016. + **4.** Where carrying out those tasks, the investigation officer shall have access to all documents and information that have been gathered by ESMA in its supervisory activities. − This Regulation shall be binding in its entirety and directly applicable in all Member States. + **5.** Upon completion of his or her investigation and before submitting the file with his or her findings to ESMA’s Board of Supervisors, the investigation officer shall give the persons subject to the investigation the opportunity to be heard on the matters being investigated. The investigation of… − ### ANNEX I + **6.** The rights of the defence of the persons subject to the investigation shall be fully respected during investigations under this Article. − **INTEREST RATE BENCHMARKS** + **7.** Upon submission of the file with his or her findings to ESMA’s Board of Supervisors, the investigation officer shall notify the persons who are subject to the investigation. The persons subject to the investigation shall be entitled to have access to the file, subject to the legitimate intere… − Accurate and sufficient data + **8.** On the basis of the file containing the investigation officer’s findings and, when requested by the persons concerned, after having heard those persons in accordance with Article 48j, ESMA shall decide if one or more of the infringements listed in point (a) of Article 42(1) has been committed… − 1. For the purposes of points (a) and (c) of Article 11(1), in general the priority of use of input data shall be as follows: + **9.** The investigation officer shall not participate in the deliberations of ESMA’s Board of Supervisors or in any other way intervene in the decision-making process of ESMA’s Board of Supervisors. − (a) a contributor's transactions in the underlying market that a benchmark intends to measure or, if not sufficient, its transactions in related markets, such as: — the unsecured inter-bank deposit market, — other unsecured deposit markets, including certificates of deposit and commercial paper, and… + **10.** By 1 October 2021, the Commission shall adopt delegated acts in accordance with Article 49 to specify the rules of procedure for the exercise of the power to impose fines or periodic penalty payments, including provisions on rights of defence, temporal provisions, and the collection of fines… − (b) a contributor's observations of third party transactions in the markets described in point (a); − − (c) committed quotes; + **11.** ESMA shall refer matters for criminal prosecution to the relevant national authorities where, in carrying out its tasks under this Regulation, it finds that there are serious indications of the possible existence of facts liable to constitute criminal offences. In addition, ESMA shall refrai… − (d) indicative quotes or expert judgements. + ### Article 48j — Hearing of the persons subject to investigations − 2. For the purposes of point (a) of Article 11(1) and Article 11(4), input data may be adjusted. + **1.** Before taking any decision pursuant to Articles 48f, 48g and 48e, ESMA shall give the persons subject to the proceedings the opportunity to be heard on its findings. ESMA shall base its decisions only on findings on which the persons subject to the proceedings have had an opportunity to comme… − In particular, input data may be adjusted by application of the following criteria: + The first subparagraph shall not apply if urgent action pursuant to Article 48e is needed in order to prevent significant and imminent damage to the financial system. In such a case ESMA may adopt an interim decision and shall give the persons concerned the opportunity to be heard as soon as possibl… − (a) proximity of transactions to the time of provision of the input data and the impact of any market events between the time of the transactions and the time of provision of the input data; + **2.** The rights of the defence of the persons subject to the proceedings shall be fully respected in the investigations. They shall be entitled to have access to ESMA’s file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the… − (b) interpolation or extrapolation from transactions data; + ### Article 48k — Review by the Court of Justice − (c) adjustments to reflect changes in the credit standing of the contributors and other market participants. + The Court of Justice shall have unlimited jurisdiction to review decisions whereby ESMA has imposed a fine or a periodic penalty payment. It may annul, reduce or increase the fine or periodic penalty payment imposed. − Oversight function + ### Article 48l — Supervisory fees − 3. The following requirements shall apply in substitution for the requirements of Article 5(4) and (5): + **1.** ESMA shall charge fees to the administrators referred to in Article 40(1), in accordance with the delegated acts adopted pursuant to paragraph 3 of this Article. Those fees shall fully cover ESMA’s necessary expenditure relating to the supervision of administrators and the reimbursement of an… − (a) the administrator of an interest rate benchmark shall have in place an independent oversight committee. Details of the membership of that committee shall be made public, along with any declarations of any conflict of interest and the processes for election or nomination of its members; + **2.** The amount of an individual fee charged to an administrator shall cover all administrative costs incurred by ESMA for its activities in relation to the supervision and it shall be proportionate to the turnover of the administrator. − (b) the oversight committee shall hold no less than one meeting every four months and shall keep minutes of each such meeting; + **3.** By 1 October 2021, the Commission shall adopt delegated acts in accordance with Article 49 in order to supplement this Regulation by specifying the type of fees, the matters for which fees are due, the amount of the fees and the manner in which they are to be paid. − (c) the oversight committee shall operate with integrity and shall have all of the responsibilities provided for in Article 5(3). + ### Article 48m — Delegation of tasks by ESMA to competent authorities − Auditing + **1.** Where necessary for the proper performance of a supervisory task, ESMA may delegate specific supervisory tasks to the competent authority of a Member State in accordance with the guidelines issued by ESMA pursuant to Article 16 of Regulation (EU) No 1095/2010. Such specific supervisory tasks … − 4. The administrator of an interest rate benchmark shall appoint an independent external auditor to review and report on the administrator's compliance with the benchmark methodology and this Regulation. The external audit of the administrator shall be carried out for the first time six months after… + By way of derogation from the first subparagraph, the authorisation of critical benchmarks shall not be delegated. − The oversight committee may require an external audit of a contributor to an interest rate benchmark if dissatisfied with any aspects of its conduct. + **2.** Prior to the delegation of a task in accordance with paragraph 1, ESMA shall consult the relevant competent authority about:(a) the scope of the task to be delegated;(b) the timetable for the performance of the task; and(c) the transmission of necessary information by and to ESMA. − Contributor systems and controls + **3.** In accordance with the delegated act adopted pursuant to Article 48l(3), ESMA shall reimburse a competent authority for costs incurred as a result of carrying out delegated tasks. − 5. The following requirements shall apply to contributors to interest rate benchmarks, in addition to the requirements set out in Article 16. Article 16(5) shall not apply. + **4.** ESMA shall review any delegation made in accordance with paragraph 1 at appropriate intervals. A delegation may be revoked at any time. − 6. Each contributor's submitter and the direct managers of that submitter shall acknowledge in writing that they have read the code of conduct and that they will comply with it. + **5.** A delegation of tasks shall not affect the responsibility of ESMA nor limit ESMA’s ability to conduct and oversee the delegated activity. − 7. A contributor's systems and controls shall include: + ### Article 48n — Transition measures related to ESMA − (a) an outline of responsibilities within each firm, including internal reporting lines and accountability, including the location of submitters and managers and the names of relevant individuals and alternates; + **1.** All competences and duties related to the supervisory and enforcement activity regarding administrators as referred to in Article 40(1) that are conferred on competent authorities as referred to in Article 40(2) shall be terminated on 1 January 2022. Those competences and duties shall be take… − (b) internal procedures for sign-off of contributions of input data; + **2.** Any files and working documents related to the supervisory and enforcement activity regarding administrators as referred to in Article 40(1), including any ongoing examinations and enforcement actions, or certified copies thereof, shall be taken over by ESMA on the date referred to in paragra… − (c) disciplinary procedures in respect of attempts to manipulate, or any failure to report, actual or attempted manipulation by parties external to the contribution process; + However, applications for authorisation by administrators of a critical benchmark referred to in points (a) and (c) of Article 20(1) and applications for recognition in accordance with Article 32 that have been received by competent authorities before 1 October 2021 shall not be transferred to ESMA,… − (d) effective conflicts of interest management procedures and communication controls, both within contributors and between contributors and other third parties, to avoid any inappropriate external influence over those responsible for submitting rates. Submitters shall work in locations physically se… + **3.** Competent authorities shall ensure that any existing records and working papers, or certified copies thereof, shall be transferred to ESMA as soon as possible and in any event by 1 January 2022. Those competent authorities shall also render all necessary assistance and advice to ESMA to facil… − (e) effective procedures to prevent or control the exchange of information between persons engaged in activities involving a risk of conflict of interest where the exchange of that information may affect the benchmark data contributed; + **4.** ESMA shall act as the legal successor to the competent authorities referred to in paragraph 1 in any administrative or judicial proceedings that result from supervisory and enforcement activity pursued by those competent authorities in relation to matters that fall within the scope this Regul… − (f) rules to avoid collusion among contributors, and between contributors and the benchmark administrators; + **5.** Any authorisation of administrators of a critical benchmark as referred to in points (a) and (c) of Article 20(1) and recognition in accordance with Article 32 granted by a competent authority referred to in paragraph 1 of this Article shall remain valid after the transfer of competences to E… − (g) measures to prevent, or limit, any person from exercising inappropriate influence over the way in which persons involved in the provision of input data carries out those activities; + ### Article 49 — Exercise of the delegation − (h) the removal of any direct link between the remuneration of employees involved in the provision of input data and the remuneration of, or revenues generated by, persons engaged in another activity, where a conflict of interest may arise in relation to those activities; + **1.** The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. − (i) controls to identify any reverse transaction subsequent to the provision of input data. + **2.** The power to adopt delegated acts referred to in Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(2), 27(2b), 33(7), 51(6) and 54(3) shall be conferred on the Commission for a period of five years from 10 December 2019. The Commission shall draw up a report in respect of the delegation of pow… − 8. A contributor to an interest rate benchmark shall keep detailed records of: + **2a.** The power to adopt delegated acts referred to in Articles 30(2a), 30(3a), 48i(10) and 48l(3) shall be conferred on the Commission for an indeterminate period of time from 30 December 2019. − (a) all relevant aspects of contributions of input data; + **2b.** The power to adopt delegated acts referred to in Articles 18a(3) and 54(7) shall be conferred on the Commission for an indeterminate period of time from 13 February 2021. − (b) the process governing input data determination and the sign-off of input data; + **3.** The delegation of power referred to in Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(2), 27(2b), 30(2a), 30(3a), 33(7), 48i(10), 48l(3), 51(6) and 54(3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power… − (c) the names of submitters and their responsibilities; + **3a.** The delegation of power referred to in Articles 18a(3) and 54(7) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect on the day following the publication of … − (d) any communications between the submitters and other persons, including internal and external traders and brokers, in relation to the determination or contribution of input data; + **4.** Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. − (e) any interaction of submitters with the administrator or any calculation agent; + **5.** As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. − (f) any queries regarding the input data and their outcome of those queries; + **6.** A delegated act adopted pursuant to Article 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(2), 27(2b), 30(2a), 30(3a), 33(7), 48i(10), 48l(3), 51(6) or 54(3) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three mo… − (g) sensitivity reports for interest rate swap trading books and any other derivative trading book with a significant exposure to interest rate fixings in respect of input data. + **6a.** A delegated act adopted pursuant to Article 18a(3) or 54(7) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three months of notification of that act to the European Parliament and to the Council or if, befo… − 9. Records shall be kept on a medium that allows the storage of information to be accessible for future reference with a documented audit trail. + ### Article 50 — Committee procedure − 10. The compliance function of the contributor to an interest rate benchmark shall report any findings, including reverse transactions, to management on a regular basis. + **1.** The Commission shall be assisted by the European Securities Committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. − 11. Input data and procedures shall be subject to regular internal reviews. + **2.** Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply, having regard to the provisions of Article 8 thereof. − 12. An external audit of the input data of a contributor to an interest rate benchmark, compliance with the code of conduct and the provisions of this Regulation shall be carried out for the first time six months after the introduction of the code of conduct, and subsequently every two years. + ### Article 51 — Transitional provisions − ### ANNEX II + **1.** An index provider providing a benchmark on 30 June 2016 shall apply for authorisation or registration in accordance with Article 34 by 1 January 2020. − **COMMODITY BENCHMARKS** + **2.** By 1 January 2020, the competent authority of the Member State where an index provider applying for authorisation in accordance with Article 34 is located shall have the power to decide to register that index provider as an administrator even if it is not a supervised entity, under the follow… − Methodology + The competent authority shall notify ESMA of its decision adopted in accordance with the first subparagraph. − 1. The administrator of a commodity benchmark shall formalise, document, and make public any methodology that the administrator uses for a benchmark calculation. At a minimum, such methodology shall contain and describe the following: + The competent authority shall keep evidence of the reasons for its decision adopted in accordance with the first subparagraph, in such a form that it is possible to fully understand the evaluations of the competent authority that the index or indices provided by the index provider are not widely use… − (a) all criteria and procedures that are used to develop the benchmark, including how the administrator uses input data including the specific volume, concluded and reported transactions, bids, offers and any other market information in its assessment or assessment time periods or windows, why a spe… + **3.** An index provider may continue to provide an existing benchmark which may be used by supervised entities until 1 January 2020 or, where the index provider submits an application for authorisation or registration in accordance with paragraph 1, unless and until such authorisation or registrati… − (b) procedures and practices that are designed to ensure consistency between its assessors in exercising their judgement; + **4.** Where an existing benchmark does not meet the requirements of this Regulation, but ceasing or changing that benchmark to fulfil the requirements of this Regulation would result in a force majeure event, frustrate or otherwise breach the terms of any financial contract or financial instrument … − (c) the relative importance that shall be assigned to each criterion used in benchmark calculation, in particular the type of input data used and the type of criterion used to guide judgement so as to ensure the quality and integrity of the benchmark calculation; + **4a.** An index provider may continue to provide an existing benchmark that has been recognised as a critical benchmark by an implementing act adopted by the Commission in accordance with Article 20 until 31 December 2021 or, where the index provider submits an application for authorisation in acco… − (d) criteria that identify the minimum amount of transaction data required for a particular benchmark calculation. If no such threshold is provided for, the reasons why a minimum threshold is not established shall be explained, including setting out the procedures to be used where no transaction dat… + **4b.** An existing benchmark that has been recognised as a critical benchmark by an implementing act adopted by the Commission in accordance with Article 20 may be used for existing and new financial instruments, financial contracts, or for measuring the performance of an investment fund until 31 D… − (e) criteria that address the assessment periods where the submitted data fall below the methodology's recommended transaction data threshold or the requisite administrator's quality standards, including any alternative methods of assessment including theoretical estimation models. Those criteria sh… + **5.** Unless the Commission has adopted an equivalence decision as referred to in paragraph (2) or (3) of Article 30, an administrator has been recognised pursuant to Article 32 or a benchmark has been endorsed pursuant to Article 33, the use in the Union by supervised entities of a third-country b… − (f) criteria for timeliness of contributions of input data and the means for such contributions of input data whether electronically, by telephone or otherwise; + The first subparagraph shall not apply to benchmarks provided by administrators who relocate from the Union to a third country during the transitional period. The competent authority shall notify ESMA in accordance with Article 35. ESMA shall draw up a list of third-country benchmarks to which the f… − (g) criteria and procedures that address assessment periods where one or more contributors submit input data that constitute a significant proportion of the total input data for that benchmark. The administrator shall also define in those criteria and procedures what constitutes a significant propor… + **6.** The Commission shall be empowered to adopt delegated acts in accordance with Article 49 concerning measures to determine the conditions on which the relevant competent authority may assess whether the cessation or the changing of an existing benchmark to conform with the requirements of this … − (h) criteria according to which transaction data may be excluded from a benchmark calculation. + ### Article 52 — Deadline for updating the prospectuses and key information documents − 2. The administrator of a commodity benchmark shall publish or make available the key elements of the methodology that the administrator uses for each commodity benchmark provided and published or, when applicable, for each family of benchmarks provided and published. + Article 29(2) is without prejudice to outstanding prospectuses approved under Directive 2003/71/EC prior to 1 January 2018. For prospectuses approved prior to 1 January 2018 under Directive 2009/65/EC, the underlying documents shall be updated at the first occasion or at the latest within 12 months … − 3. Along with the methodology referred to in paragraph 2, the administrator of a commodity benchmark shall also describe and publish all of the following: + ### Article 53 — ESMA reviews − (a) the rationale for adopting a particular methodology, including any price adjustment techniques and a justification of why the time period or window within which input data is accepted is a reliable indicator of physical market values; + **1.** ESMA shall seek to build a common European supervisory culture and consistent supervisory practices and ensure consistent approaches among competent authorities in relation to the application of Article 33. To that end, the endorsements authorised in accordance with Article 33 shall be review… − (b) the procedure for internal review and approval of a given methodology, as well as the frequency of such review; + ESMA shall issue an opinion to each competent authority that has endorsed a third-country benchmark assessing how that competent authority applies the relevant requirements of Article 33 and the requirements of any relevant delegated act and regulatory or implementing technical standards based on th… − (c) the procedure for external review of a given methodology, including the procedures to gain market acceptance of the methodology through consultation with users on important changes to their benchmark calculation processes. + **2.** ESMA shall have the power to require the documented evidence from a competent authority for any of the decisions adopted in accordance with the first subparagraph of Article 51(2) and Article 25(2), as well as for actions taken with regard to the enforcement of Article 24(1). − Changes to a methodology + ### Article 54 — Review − 4. The administrator of a commodity benchmark shall adopt and make public to users explicit procedures and the rationale of any proposed material change in its methodology. Those procedures shall be consistent with the overriding objective that an administrator must ensure the continued integrity of… + **1.** By 1 January 2020, the Commission shall review and submit a report to the European Parliament and to the Council on this Regulation and in particular on:(a) the functioning and effectiveness of the critical benchmark, mandatory administration and mandatory contribution regime under Articles 2… − (a) advance notice in a clear time frame that gives users sufficient opportunity to analyse and comment on the impact of such proposed changes, having regard to the administrator's calculation of the overall circumstances; + **2.** The Commission shall review the evolution of international principles applicable to benchmarks and of legal frameworks and supervisory practices in third countries concerning the provision of benchmarks and report to the European Parliament and to the Council every five years after 1 January … − (b) for users' comments, and the administrator's response to those comments, to be made accessible to all market users after any given consultation period, except where the commenter has requested confidentiality. + **3.** The Commission shall be empowered to adopt delegated acts in accordance with Article 49 in order to extend the 42-month period referred to in Article 51(2) by 24 months, if the report referred to in point (b) of paragraph 1 of this Article provides evidence that the transitional registration … − 5. The administrator of a commodity benchmark shall regularly examine its methodologies for the purpose of ensuring that they reliably reflect the physical market under assessment and shall include a process for taking into account the views of relevant users. + **4.** By 31 December 2022, the Commission shall review the minimum standards for EU Climate Transition Benchmarks and for EU Paris-aligned Benchmarks in order to ensure that the selection of the underlying assets is coherent with environmentally sustainable investments as defined in a Union-wide fr… − Quality and integrity of benchmark calculations + **5.** Before 31 December 2022, the Commission shall present a report to the European Parliament and to the Council on the impact of this Regulation and the feasibility of an ‘ESG benchmark’, taking into account the evolving nature of sustainability indicators and the methods used to measure them. T… − 6. The administrator of a commodity benchmark shall: + **6.** By 15 June 2023, the Commission shall submit a report to the European Parliament and to the Council on the scope of this Regulation, in particular with respect to the continued use by supervised entities of third-country benchmarks and on potential shortcomings of the current framework. That … − (a) specify the criteria that define the physical commodity that is the subject of a particular methodology; + **7.** The Commission is empowered to adopt a delegated act in accordance with Article 49 by 15 June 2023 in order to extend the transitional period referred to in Article 51(5) until 31 December 2025 at the latest if the report referred to in paragraph 6 of this Article demonstrates that, otherwise… − (b) give priority to input data in the following order, where consistent with its methodologies: (i) concluded and reported transactions; (ii) bids and offers; (iii) other information. If concluded and reported transactions are not given priority, the reasons should be explained, as required in poin… + ### Article 55 — Notification of benchmarks referenced and their administrators − (c) employ sufficient measures designed to use input data submitted and considered in a benchmark calculation which are bona fide, meaning that the parties submitting the input data have executed, or are prepared to execute, transactions generating such input data and the concluded transactions were… + When a benchmark is referenced in a financial instrument covered by Article 4(1) of Regulation (EU) No 596/2014, the notifications under Article 4(1) of that Regulation shall include the name of the benchmark referenced and its administrator. − (d) establish and employ procedures to identify anomalous or suspicious transaction data and keep records of decisions to exclude transaction data from the administrator's benchmark calculation process; + ### Article 56 — Amendments to Regulation (EU) No 596/2014 − (e) encourage contributors to submit all of their input data that falls within the administrator's criteria for that calculation. Administrators shall seek, so far as they are able and is reasonable, to ensure that input data submitted is representative of the contributors' actual concluded transact… + Regulation (EU) No 596/2014 is amended as follows: − (f) employ a system of appropriate measures to ensure that contributors comply with the administrator's applicable quality and integrity standards for input data. + (1) Article 19 is amended as follows: (a) the following paragraph is inserted: **‘1a.** The notification obligation referred to in paragraph 1 shall not apply to transactions in financial instruments linked to shares or to debt instruments of the issuer referred to in that paragraph where at the tim… − 7. The administrator of a commodity benchmark shall describe and publish for each calculation, to the extent reasonable without prejudicing due publication of the benchmark: + (2) Article 35 is amended as follows: (a) in paragraphs (2) and (3), the phrase ‘and Article 19(13) and (14)’ is replaced by ‘, Article 19(13) and (14) and Article 38’; (b) paragraph (5) is replaced by the following: **‘5.** A delegated act adopted pursuant to Article 6(5) or (6), Article 12(5), the… − (a) a concise explanation, sufficient to facilitate a benchmark subscriber's or competent authority's ability to understand how the calculation was developed including, at a minimum, the size and liquidity of the physical market being assessed (such as the number and volume of transactions submitted… + (3) In Article 38, the following paragraphs are added: ‘By 3 July 2019, the Commission shall, after consulting ESMA, submit a report to the European Parliament and to the Council on the level of the thresholds set out in Article 19(1a)(a) and (b) in relation to managers' transactions where the issue… − (b) a concise explanation of the extent to which, and the basis upon which, any judgement including the exclusions of data which otherwise conformed to the requirements of the relevant methodology for that calculation, basing prices on spreads or interpolation, extrapolation, or weighting bids or of… + ### Article 57 — Amendments to Directive 2008/48/EC − Integrity of the reporting process + Directive 2008/48/EC is amended as follows: − 8. The administrator of a commodity benchmark shall: + (1) In Article 5(1), the following subparagraph is inserted after the second subparagraph: ‘Where the credit agreement references a benchmark as defined in point 3 of Article 3(1) of Regulation (EU) 2016/1011 of the European Parliament and of the Council (*1), the name of the benchmark and of its ad… − (a) specify the criteria that define who may submit input data to the administrator; + (2) In Article 27(1), the following subparagraph is inserted after the second subparagraph: ‘By 1 July 2018 Member States shall adopt and publish the provisions necessary to comply with the third subparagraph of Article 5(1) and shall communicate them to the Commission. They shall apply those provis… − (b) have in place quality control procedures to evaluate the identity of a contributor and any submitter who reports input data and the authorisation of such submitter to report input data on behalf of a contributor; + ### Article 58 — Amendments to Directive 2014/17/EU − (c) specify the criteria applied to employees of a contributor who are permitted to submit input data to an administrator on behalf of a contributor; encourage contributors to submit transaction data from back office functions and seek corroborating data from other sources where transaction data is … + Directive 2014/17/EU is amended as follows: − (d) implement internal controls and written procedures to identify communications between contributors and assessors that attempt to influence a calculation for the benefit of any trading position (whether of the contributor, its employees or any third party), attempt to cause an assessor to violate… + (1) In the second subparagraph of Article 13(1), the following point is inserted: ‘(ea) where contracts that reference a benchmark as defined in point (3) of Article 3(1) of Regulation (EU) 2016/1011 of the European Parliament and of the Council (18) are available, the names of the benchmarks and of… − Assessors + (2) In Article 42(2), the following subparagraph is inserted after the first subparagraph: ‘By 1 July 2018, Member States shall adopt and publish the provisions necessary to comply with point (ea) of the second subparagraph of Article 13(1) and shall communicate them to the Commission. They shall ap… − 9. In relation to the role of an assessor, the administrator of a commodity benchmark shall: + (3) In Article 43(1), the following subparagraph is added: ‘Point (ea) of the second subparagraph of Article 13(1) shall not apply to credit agreements existing before 1 July 2018.’. − (a) adopt and have in place explicit internal rules and guidelines for selecting assessors, including their minimum level of training, experience and skills, as well as the process for periodic review of their competence; − − (b) have in place arrangements to ensure that calculations can be made on a consistent and regular basis; + ### Article 59 — Entry into force − (c) maintain continuity and succession planning in respect of its assessors in order to ensure that calculations are made consistently and by employees who possess the relevant levels of expertise; and + This Regulation shall enter into force on the day following that of its publication in the *Official Journal of the European Union*. − (d) establish internal control procedures to ensure the integrity and reliability of calculations. At a minimum, such internal controls and procedures shall require the ongoing supervision of assessors to ensure that the methodology was properly applied and procedures for internal sign-off by a supe… + It shall apply from 1 January 2018. − Audit trails + Notwithstanding the second paragraph of this Article, Articles 3(2), 5(5), 11(5), 13(3), 15(6), 16(5), Article 20 (excluding point (b) of paragraph (6)), Articles 21 and 23, Articles 25(8), 25(9), 26(5), 27(3), 30(5), 32(9), 33(7), 34(8), Article 46, and Articles 47(3) and 51(6) shall apply from 30 … − 10. The administrator of a commodity benchmark shall have rules and procedures in place to document contemporaneously relevant information, including: + Notwithstanding the second paragraph of this Article, Article 56 shall apply from 3 July 2016. − (a) all input data; − − (b) the judgements that are made by assessors in reaching each benchmark calculation; − − (c) whether a calculation excluded a particular transaction which otherwise conformed to the requirements of the relevant methodology for that calculation, and the rationale for doing so; − − (d) the identity of each assessor and of any other person who submitted or otherwise generated any of the information in points (a), (b) or (c). − − 11. The administrator of a commodity benchmark shall have rules and procedures in place to ensure that an audit trail of relevant information is retained for at least five years in order to document the construction of its calculations. − − Conflicts of interest − − 12. The administrator of a commodity benchmark shall establish adequate policies and procedures for the identification, disclosure, management or mitigation and avoidance of any conflict of interest and the protection of integrity and independence of calculations. Those policies and procedures shall… − − (a) ensure that benchmark calculations are not influenced by the existence of, or potential for, a commercial or personal business relationship or interest between the administrator or its affiliates, its personnel, clients, any market participant or persons connected with them; − − (b) ensure that personal interests and business connections of the administrator's personnel are not permitted to compromise the administrator's functions, including outside employment, travel, and acceptance of entertainment, gifts and hospitality provided by the administrator's clients or other co… − − (c) ensure, in respect of identified conflicts, appropriate segregation of functions within the administrator by way of supervision, compensation, systems access and information flows; − − (d) protect the confidentiality of information submitted to or produced by the administrator, subject to the disclosure obligations of the administrator; − − (e) prohibit managers, assessors and other employees of the administrator from contributing to a benchmark calculation by way of engaging in bids, offers and trades on either a personal basis or on behalf of market participants; and − − (f) effectively address any identified conflict of interest which may exist between the administrator's provision of a benchmark (including all employees who perform or otherwise participate in benchmark calculation responsibilities), and any other business of the administrator. − − 13. The administrator of a commodity benchmark shall ensure that its other business operations have in place appropriate procedures and mechanisms designed to minimise the likelihood that a conflict of interest will affect the integrity of benchmark calculations. − − 14. The administrator of a commodity benchmark shall ensure that it has in place segregated reporting lines amongst its managers, assessors and other employees and from the managers to the administrator's most senior level management and its board to ensure: − − (a) that the administrator satisfactorily implements the requirements of this Regulation; and − − (b) that responsibilities are clearly defined and do not conflict or cause a perception of conflict. − − 15. The administrator of a commodity benchmark shall disclose to its users as soon as it becomes aware of a conflict of interest arising from the ownership of the administrator. … diff truncated at 500 changed lines …
| tier | A, publisher-supplied validity dates |
| history begins | publisher |
| index built | 2026-08-07T19:46:23Z · corpus 8d5e859 |
| stamp signature | valid (ECDSA-P256) |