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• Entrée en vigueur : 2016-06-30 (mention de l’éditeur, mot pour mot : DATPUB +1 V ART 59 L 1)
• Mise en application : 2016-06-30 (mention de l’éditeur, mot pour mot : MA/PART V ART 59 L 3)
• Mise en application : 2016-07-03 (mention de l’éditeur, mot pour mot : MA/PART V ART 59 L 4)
• Mise en application : 2018-01-01 (mention de l’éditeur, mot pour mot : V ART 59 L 2)
• Fin de validité, totale ou partielle : 2026-11-19 (mention de l’éditeur, mot pour mot : FIN/VAL/PART ART 57 AI/PAR 32023L2225)
• Date limite : 2019-12-10 (mention de l’éditeur, mot pour mot : V ART 49.2)
• Date limite : 2019-12-30 (mention de l’éditeur, mot pour mot : V ART 49.2a)
• Date limite : 2020-01-01 (mention de l’éditeur, mot pour mot : B-19.12 V ART 54.1)
• Date limite : 2021-01-01 (mention de l’éditeur, mot pour mot : V ART 19c.1)
• Date limite : 2021-10-01 (mention de l’éditeur, mot pour mot : V ART 48n.2)
• Date limite : 2022-01-01 (mention de l’éditeur, mot pour mot : V ART 48n.1)
• Date limite : 2022-01-01 (mention de l’éditeur, mot pour mot : AU+TARD V ART 48n.3)
• Date limite : 2022-12-31 (mention de l’éditeur, mot pour mot : V ART 18.2 ET 54.4 ET 54.5)
• Date limite : 2023-06-15 (mention de l’éditeur, mot pour mot : V ART 18.3 ET 54.6 ET 54.7)
• Date limite : 2023-12-31 (mention de l’éditeur, mot pour mot : V ART 51.5)
• Date limite : 2024-03-11 (mention de l’éditeur, mot pour mot : AU+TARD V ART 49.2)
• Date limite : 2025-12-31 (mention de l’éditeur, mot pour mot : V ART 54.7 ET 51.5 ET 32023R2222)
• Date limite : 2029-06-30 (mention de l’éditeur, mot pour mot : V ART 54.8 ET 32025R0914)

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Page 3 sur 3 : Article 48b à Article 59.

60. 048B Article 48b

    Article 48b Request for information 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 referred to in point (a) have outsourced functions or activities in accordance with Article 10; (c) persons otherwise closely and substantially related or connected to the persons referred to in point (a). 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 received without undue delay with ESMA. 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 statement that there is no obligation on the person from whom the information is requested to provide that information but that in the event of a voluntary reply to the request, the information provided must not be incorrect or misleading; (f) indicate the amount of the fine to be imposed in accordance with Article 48f where information provided is incorrect or misleading. 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) indicate the periodic penalty payments provided for in Article 48g where the required information is incomplete; (f) indicate the fine provided for in Article 48f, where the answers to the questions asked are incorrect or misleading; (g) indicate the right to appeal the decision before ESMA’s Board of Appeal and to have the decision reviewed by the Court of Justice of the European Union (Court of Justice) in accordance with Article 48k of this Regulation and Articles 60 and 61 of Regulation (EU) No 1095/2010. 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 supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading. 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.

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61. 048C Article 48c

    Article 48c General investigations 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 material relevant to the execution of its tasks, irrespective of the medium on which they are stored; (b) take or obtain certified copies of or extracts from such records, data, procedures and other material; (c) summon and ask any of those persons or their representatives, or staff, for oral or written explanations on facts or documents relating to the subject matter and purpose of the inspection, and to record the answers; (d) interview any other natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation; (e) request records of telephone and data traffic. 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 periodic penalty payments provided for in Article 48g where the production of the required records, data, procedures or any other material, or the answers to questions asked to the persons referred to in Article 48b(1) are not provided or are incomplete, and the fines provided for in Article 48f, where the answers to questions asked to those persons are incorrect or misleading. 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 available under Regulation (EU) No 1095/2010 and the right to have the decision reviewed by the Court of Justice. 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, at the request of ESMA, assist those authorised persons in carrying out their duties. Officials of the competent authority concerned may attend the investigations upon request. 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 measure. 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 to be taken are proportionate and not arbitrary or excessive. 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 involvement of the person subject to the coercive measures. However, the national judicial authority shall not review the necessity for the investigation or demand that it be provided with the information on ESMA’s file. The lawfulness of ESMA’s decision shall be subject to review only by the Court of Justice following the procedure set out in Article 61 of Regulation (EU) No 1095/2010.

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62. 048D Article 48d

    Article 48d On-site inspections 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). 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 premises and books or records for the period of, and to the extent necessary for, the inspection. 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 authority, may carry out the on-site inspection without prior notice. Inspections in accordance with this Article shall be conducted provided that the relevant authority has confirmed that it does not object to those inspections. 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 persons concerned do not submit to the inspection. 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, the legal remedies available under Regulation (EU) No 1095/2010 as well as the right to have the decision reviewed by the Court of Justice. 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 attend the on-site inspections upon request. 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 48c(1). 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 the police or of an equivalent enforcement authority, to enable them to conduct their on-site inspection. 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 precautionary measure. 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 authentic; (b) any measures to be taken are proportionate and not arbitrary or excessive. 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 involvement of the person subject to the coercive measures. However, the national judicial authority shall not review the necessity of the investigation or demand that it be provided with the information on ESMA’s file. The lawfulness of ESMA’s decision shall be subject to review only by the Court of Justice following the procedure set out in Article 61 Regulation (EU) No 1095/2010.

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63. 048E Article 48e

    Article 48e Supervisory measures by ESMA 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 imposing fines pursuant to Article 48f; (c) issue public notices. 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 attributable to the infringement; (c) whether the infringement has been committed intentionally or negligently; (d) the degree of responsibility of the person responsible for the infringement; (e) the financial strength of the person responsible for the infringement, as indicated by the total turnover of the responsible legal person or the annual income and net assets of the responsible natural person; (f) the impact of the infringement on retail investors’ interests; (g) the importance of the profits gained, losses avoided by the person responsible for the infringement or the losses for third parties derived from the infringement, insofar as they can be determined; (h) the level of cooperation of the person responsible for the infringement with ESMA, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person; (i) previous infringements by the person responsible for the infringement; (j) measures taken after the infringement by the person responsible for the infringement to prevent its repetition. 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 working days from the date when it was adopted. The disclosure to the public referred to in the first subparagraph shall include the following: (a) a statement affirming the right of the person responsible for the infringement to appeal the decision; (b) where relevant, a statement affirming that an appeal has been lodged and specifying that such an appeal does not have suspensive effect; (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.

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64. 048F Article 48f

    Article 48f Fines 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 Article 42(1), point (a), or any failure to cooperate or comply in an investigation or with an inspection or request covered by Section 1 of this Chapter, it shall adopt a decision imposing a fine in accordance with paragraph 2 of this Article. 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. 2. The maximum amount of the fine referred to in paragraph 1 shall be: (a) in the case of a legal person, EUR , 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 person according to the last available financial statements approved by the management body, whichever is the higher; (b) in the case of a natural person, EUR , or, in the Member States whose currency is not the euro, the corresponding value in the national currency on 30 June 2016. 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 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 the total annual turnover of that legal person according to the last available financial statements approved by the management body, whichever is the higher for legal persons, and EUR or, in the Member States whose official currency is not the euro, the corresponding value in the national currency on 30 June 2016 for natural persons. 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 corresponding type of income in accordance with the relevant Union law in the area of accounting according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking. 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). 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. 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.

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65. 048G Article 48g

    Article 48g Periodic penalty payments 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 by a decision pursuant to Article 48b; (ii) to submit to an investigation and in particular to produce complete records, data, procedures or any other material required and to complete and correct other information provided in an investigation launched by a decision pursuant to Article 48c; (iii) to submit to an on-site inspection ordered by a decision taken pursuant to Article 48d. 2. A periodic penalty payment shall be effective and proportionate. The periodic penalty payment shall be imposed for each day of delay. 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 stipulated in the decision imposing the periodic penalty payment. 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.

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66. 048H Article 48h

    Article 48h Disclosure, nature, enforcement and allocation of fines and periodic penalty payments 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 disclosure shall not contain personal data within the meaning of Regulation (EU) 2018/1725 of the European Parliament and of the Council. 2. Fines and periodic penalty payments imposed pursuant to Articles 48f and 48g shall be of an administrative nature. 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. 4. Fines and periodic penalty payments imposed pursuant to Articles 48f and 48g shall be enforceable. Enforcement shall be governed by the rules of procedure in force in the Member State or third country in which it is carried out. 5. The amounts of the fines and the periodic penalty payments shall be allocated to the general budget of the European Union.

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67. 048I Article 48i

    Article 48i Procedural rules for taking supervisory measures and imposing fines 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 Article 42(1), point (a), or of a failure to cooperate or comply in an investigation or with an inspection or request covered by Section 1 of Chapter 4, ESMA shall appoint an independent investigation officer within ESMA to investigate the matter. The appointed officer shall not be involved or have been directly or indirectly involved in the supervision of the benchmarks to which the infringement relates and shall perform his or her functions independently from ESMA’s Board of Supervisors. 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. 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. 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. 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 officer shall base his or her findings only on facts on which the persons concerned have had the opportunity to comment. 6. The rights of the defence of the persons subject to the investigation shall be fully respected during investigations under this Article. 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 interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information affecting third parties. 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 Article 42(1), point (a), or a failure to cooperate or comply in an investigation or with an inspection or request covered by Section 1 of Chapter 4, has been committed by the persons subject to the investigation and, in such case, shall take a supervisory measure in accordance with Article 48e and impose a fine in accordance with Article 48f, as applicable. 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. 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 or periodic penalty payments, and the limitation periods for the imposition and enforcement of fines and periodic penalty payments. 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 refrain from imposing fines or periodic penalty payments where a prior acquittal or conviction arising from an identical fact or facts which are substantially the same has already acquired the force of res judicata as the result of criminal proceedings under national law.

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68. 048J Article 48j

    Article 48j Hearing of the persons subject to investigations 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 comment. 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 possible after taking its decision. 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 file shall not extend to confidential information or ESMA’s internal preparatory documents.

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69. 048K Article 48k

    Article 48k Review by the Court of Justice 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.

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70. 048L Article 48l

    Article 48l Supervisory fees 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 any costs that the competent authorities may incur carrying out work pursuant to this Regulation in particular as a result of any delegation of tasks in accordance with Article 48m. 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. 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.

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71. 048M Article 48m

    Article 48m Delegation of tasks by ESMA to competent authorities 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 may, in particular, include the power to carry out requests for information in accordance with Article 48b and to conduct investigations and on-site inspections in accordance with Article 48c and Article 48d. By way of derogation from the first subparagraph, the authorisation of critical benchmarks shall not be delegated. 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. 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. 4. ESMA shall review any delegation made in accordance with paragraph 1 at appropriate intervals. A delegation may be revoked at any time. 5. A delegation of tasks shall not affect the responsibility of ESMA nor limit ESMA’s ability to conduct and oversee the delegated activity.

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72. 048N Article 48n

    Article 48n Transition measures related to ESMA 1. All competences and duties related to the supervisory and enforcement activity regarding administrators as referred to in Article 40(1), points (a) and (b), 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 taken up by ESMA on the same date. 1a. All competences and duties related to the supervisory and enforcement activity regarding administrators endorsing benchmarks provided in a third country as referred to in Article 40(1), point (c), that are conferred on competent authorities as referred to in Article 40(2) shall be terminated on 1 January 2026. Those competences and duties shall be taken up by ESMA on the same date. 2. Any files and working documents related to the supervisory and enforcement activity regarding administrators as referred to in Article 40(1), points (a) and (b), including any ongoing examinations and enforcement actions, or certified copies thereof, shall be taken over by ESMA on the date referred to in paragraph 1 of this Article. However, applications for authorisation by administrators of a critical benchmark referred to in Article 20(1), points (a) and (c), 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, and the decision to authorise or recognise shall be taken by the relevant competent authority. 2a. Any files and working documents related to the supervisory and enforcement activity regarding administrators endorsing benchmarks provided in a third country as referred to in Article 40(1), point (c), including any ongoing examinations and enforcement actions, or certified copies thereof, shall be taken over by ESMA on the date referred to in paragraph 1a of this Article. However, applications for endorsement that have been received by competent authorities before 1 October 2025 shall not be transferred to ESMA, and the decision to authorise or endorse shall be taken by the relevant competent authority. 3. Competent authorities shall ensure that any existing records and working papers, or certified copies thereof regarding administrators as referred to in Article 40(1), points (a) and (b), 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 facilitate effective and efficient transfer and taking-up of supervisory and enforcement activity regarding administrators as referred to in Article 40(1), points (a) and (b). 3a. Competent authorities shall ensure that any existing records and working papers, or certified copies thereof regarding administrators as referred to in Article 40(1), point (c), shall be transferred to ESMA as soon as possible and in any event by 1 January 2026. Those competent authorities shall also render all necessary assistance and advice to ESMA to facilitate effective and efficient transfer and taking-up of supervisory and enforcement activity regarding administrators as referred to in Article 40(1), point (c). 4. ESMA shall act as the legal successor to the competent authorities referred to in paragraphs 1 and 1a 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 of this Regulation. 5. Any authorisation of administrators of a critical benchmark as referred to in Article 20(1), points (a) and (c), recognition in accordance with Article 32 and any authorisation or registration of an administrator endorsing or envisaging to endorse benchmarks provided in a third country granted by a competent authority referred to in paragraph 1 of this Article shall remain valid after the transfer of competences to ESMA.

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73. 049 Article 49

    Article 49 Exercise of the delegation 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(9), 27(2b), 33(7), 51(6) and 54(3) shall be conferred on the Commission for a period of five years from 30 June 2024. The Commission shall draw up a report in respect of the delegation of power no later than 31 December 2029. The delegation of power shall be tacitly extended for further periods of identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period. 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. 2b. The power to adopt delegated acts referred to in Article 54(7) shall be conferred on the Commission for an indeterminate period of time from 13 February 2021. 3. The delegation of power referred to in Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(9), 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 specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or on a later date specified therein. It shall not affect the validity of any delegated acts already in force. 3a. The delegation of power referred to in Article 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 the decision in the Official Journal of the European Union or on a later date specified therein. It shall not affect the validity of any delegated acts already in force. 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. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 6. A delegated act adopted pursuant to Article 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(9), 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 months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council. 6a. A delegated act adopted pursuant to Article 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, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.

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74. 050 Article 50

    Article 50 Committee procedure 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. 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.

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75. 051 Article 51

    Article 51 Transitional provisions 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. 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 following conditions: (a) the index provider does not provide a critical benchmark; (b) the competent authority is aware, on a reasonable basis, that the index or indices provided by the index provider are not widely used, within the meaning of this Regulation, in the Member State where the index provider is located as well as in other Member States. The competent authority shall notify ESMA of its decision adopted in accordance with the first subparagraph. 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 used, including any market data, judgement or other information, as well as information received from the index provider. 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 registration is refused. 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 or the rules of any investment fund, which references that benchmark, the use of the benchmark shall be permitted by the competent authority of the Member State where the index provider is located. No financial instruments, financial contracts, or measurements of the performance of an investment fund shall add a reference to such an existing benchmark after 1 January 2020. 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 accordance with paragraph 1, unless and until such authorisation is refused. 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 December 2021 or, where the index provider submits an application for authorisation in accordance with paragraph 1, unless and until such authorisation is refused. 4c. Where competent authorities or ESMA intend to designate as significant a benchmark provided by an administrator that was included in the register referred to in Article 36 on 31 December 2025 or where ESMA intends to designate as significant a benchmark that was included in the register referred to in Article 36 on 31 December 2025, the competent authorities or ESMA, as applicable, shall do so by 30 September 2026. Administrators of benchmarks that on 31 December 2025 were included in the register referred to in Article 36 as authorised, registered or recognised, or as endorsing administrators, shall retain that status until 30 September 2026 and: (a) where one or more of their benchmarks are significant pursuant to Article 24(1), point (a), those administrators shall not be obliged to re-apply for authorisation, registration, recognition or endorsement pursuant to Article 24a(1); (b) where one or more of their benchmarks are an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark, or a commodity benchmark subject to Annex II, those administrators shall not be obliged to re-apply for authorisation, registration, recognition or endorsement pursuant to Article 34; (c) where one or more of their benchmarks are designated as significant pursuant to Article 24(3) or (6) on or before 30 September 2026, those administrators shall not be obliged to re-apply for authorisation, registration, recognition or endorsement pursuant to Article 24a(2) or (3), as applicable; (d) where none of their benchmarks is significant pursuant to Article 24 as at 30 September 2026, an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark, or a commodity benchmark subject to Annex II, and those administrators request designation of one or more of their benchmarks as significant pursuant to Article 24(7) by 1 January 2027, those administrators shall not be obliged to re-apply for authorisation or registration where that request leads to a designation. A spot foreign exchange benchmark provided by an administrator located in a third country may be used for existing and new financial instruments and financial contracts, or for measuring the performance of an investment fund until the date of entry into force of the implementing act referred to in Article 18a(3). 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 benchmark shall be permitted only for financial instruments, financial contracts and measurements of the performance of an investment fund that already reference that benchmark or which add a reference to such benchmark before 31 December 2023. 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 first subparagraph does not apply. Where ESMA has received, by 31 December 2025, an application for recognition pursuant to Article 32(5) from an administrator located in a third country providing an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark or a commodity benchmark subject to Annex II, or an application for endorsement pursuant to Article 33(1) for an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark or a commodity benchmark subject to Annex II provided by an administrator located in a third country, the benchmark concerned may be used for existing and new financial instruments and financial contracts, unless and until its administrator’s recognition or its endorsement is refused by ESMA. 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 Regulation could reasonably result in a force majeure event, frustrate or otherwise breach the terms of any financial contract or financial instrument or the rules of any investment fund which references such benchmark.

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76. 052 Article 52

    Article 52 Deadline for updating the prospectuses and key information documents 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 after that date.

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77. 053 Article 53

    Article 53 ESMA reviews 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 reviewed by ESMA every two years. 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 this Regulation. 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).

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78. 054 Article 54

    Article 54 Review 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 20, 21 and 23 and the definition of a critical benchmark in point (25) of Article 3(1); (b) the effectiveness of the authorisation, registration and supervision regime of administrators under Title VI and the colleges under Article 46 and the appropriateness of supervision of certain benchmarks by a Union body; (c) the functioning and effectiveness of Article 19(2), in particular the scope of its application. 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 2018. That report shall assess in particular whether there is a need to amend this Regulation and shall be accompanied by a legislative proposal, if appropriate. 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 regime under Article 51(2) is not detrimental to a common European supervisory culture and consistent supervisory practices and approaches among competent authorities. 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 framework. 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. That report shall be accompanied, where appropriate by a legislative proposal. 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 report shall assess in particular whether there is a need to amend this Regulation in order to reduce its scope to the provision of certain types of benchmarks or to the provision of benchmarks that are widely used in the Union and shall be accompanied, where appropriate, by a legislative proposal. 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, the continued use in the Union of certain third-country benchmarks by supervised entities would be significantly impaired or would pose a threat to financial stability. 8. By 30 June 2029, the Commission shall, after consulting ESMA, present a report to the European Parliament and to the Council assessing whether the scope of this Regulation with respect to benchmarks with ESG-related claims, and in particular ESG disclosures by administrators of those benchmarks, is appropriate. In that assessment, the Commission shall take into account the availability in the Union of benchmarks with ESG-related claims and their uptake considering, where possible, the cost of those benchmarks and the evolving nature of ESG indicators and methods used to measure them. The report shall also include an assessment as to whether the content of the disclosures to be made under this Regulation is consistent with sustainability-related disclosures under Regulation (EU) 2019/2088 and with relevant ESMA guidelines. That report shall, where appropriate, be accompanied by a legislative proposal.

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79. 055 Article 55

    Article 55 Notification of benchmarks referenced and their administrators 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.

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80. 056 Article 56

    Article 56 Amendments to Regulation (EU) No 596/2014 Regulation (EU) No 596/2014 is amended as follows: (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 time of the transaction any of the following conditions is met: (a) the financial instrument is a unit or share in a collective investment undertaking in which the exposure to the issuer's shares or debt instruments does not exceed 20 % of the assets held by the collective investment undertaking; (b) the financial instrument provides exposure to a portfolio of assets in which the exposure to the issuer's shares or debt instruments does not exceed 20 % of the portfolio's assets; (c) the financial instrument is a unit or share in a collective investment undertaking or provides exposure to a portfolio of assets and the person discharging managerial responsibilities or person closely associated with such a person does not know, and could not know, the investment composition or exposure of such collective investment undertaking or portfolio of assets in relation to the issuer's shares or debt instruments, and furthermore there is no reason for that person to believe that the issuer's shares or debt instruments exceed the thresholds in point (a) or (b). If information regarding the investment composition of the collective investment undertaking or exposure to the portfolio of assets is available, then the person discharging managerial responsibility or person closely associated with such a person shall make all reasonable efforts to avail themselves of that information.’; (b) in paragraph 7, the following subparagraph is inserted after the second subparagraph: ‘For the purposes of point (b), transactions executed in shares or debt instruments of an issuer or derivatives or other financial instruments linked thereto by managers of a collective investment undertaking in which the person discharging managerial responsibilities or a person closely associated with them has invested do not need to be notified where the manager of the collective investment undertaking operates with full discretion, which excludes the manager receiving any instructions or suggestions on portfolio composition directly or indirectly from investors in that collective investment undertaking.’. (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 third subparagraph of Article 17(2), Article 17(3), Article 19(13) or (14) or Article 38, shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or the Council.’. (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 issuer's shares or debt instruments form part of a collective investment undertaking or provide exposure to a portfolio of assets, with a view to assessing whether that level is appropriate or should be adjusted. The Commission shall be empowered to adopt delegated acts in accordance with Article 35 adjusting the thresholds in Article 19(1a)(a) and (b), if it determines in that report that those thresholds should be adjusted.’.

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81. 057 Article 57

    Article 57 Amendments to Directive 2008/48/EC Directive 2008/48/EC is amended as follows: (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, the name of the benchmark and of its administrator and the potential implications on the consumer shall be provided by the creditor, or where applicable, by the credit intermediary, to the consumer in a separate document, which may be annexed to the Standard European Consumer Credit Information form. (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 provisions from 1 July 2018.’.

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82. 058 Article 58

    Article 58 Amendments to Directive 2014/17/EU Directive 2014/17/EU is amended as follows: (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 are available, the names of the benchmarks and of their administrators and the potential implications on the consumer; (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 apply those provisions from 1 July 2018.’; (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.’.

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83. 059 Article 59

    Article 59 Entry into force This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union. It shall apply from 1 January 2018. 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 June 2016. Notwithstanding the second paragraph of this Article, Article 56 shall apply from 3 July 2016.

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