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Page 2 sur 3 : Article 24 à Article 48a.

32. 024 Article 24

    Article 24 Significant benchmarks 1. A benchmark which is not a critical benchmark shall be significant where either of the following conditions is fulfilled: (a) it is used directly or indirectly within a combination of benchmarks within the Union as a reference for financial instruments or financial contracts or for measuring the performance of investment funds that have a total average value of at least EUR 50 billion on the basis of the following characteristics of the benchmark, over a period of 6 months: (i) the range of maturities or tenors of the benchmark, where applicable; (ii) all the currencies or other units of measurement of the benchmark, where applicable; and (iii) all the return calculation methodologies, where applicable; (b) the benchmark has been designated as significant in accordance with the procedure laid down in paragraphs 3, 4 and 5, the procedure laid down in paragraph 6, or the procedure laid down in paragraph 7. 2. An administrator shall immediately notify the competent authority of the Member State where it is located or, if located in a third country, ESMA, when one or several of that administrator’s benchmarks reach the threshold referred to in paragraph 1, point (a). Following receipt of that notification, the competent authority or ESMA, as applicable, shall publish a statement on its website stating that that benchmark is significant. An administrator shall, upon the request of the competent authority of the Member State where it is located or, if located in a third country, upon the request of ESMA, provide that competent authority or ESMA, as applicable, with information as to whether the threshold referred to in paragraph 1, point (a), has been reached. Where a competent authority or, in the case of a third-country administrator, ESMA has clear and demonstrable grounds to consider that a benchmark reached the threshold referred to in paragraph 1, point (a), the competent authority or ESMA may issue a notice to that effect. Such a notice shall trigger the same obligations for the benchmark administrator as the notification referred to in the first subparagraph of this paragraph. At least 10 working days before issuing such a notice, the competent authority or ESMA, as applicable, shall inform the administrator of the benchmark concerned of its findings, and invite that administrator to submit any observations. 3. A competent authority may, after having consulted ESMA in accordance with paragraph 4 and having taken into account its advice, designate a benchmark provided by an administrator located in the Union that does not reach the threshold referred to in paragraph 1, point (a), as significant where that benchmark fulfils the following conditions: (a) the benchmark has no, or very few, appropriate market-led substitutes; (b) in the event that the benchmark ceases to be provided, or is provided on the basis of input data that are no longer fully representative of the underlying market or economic reality or that are unreliable, there would be significant and adverse impacts on market integrity, financial stability, consumers, the real economy, or the financing of households and businesses in that competent authority’s Member State; and (c) the benchmark has not been designated as significant by a competent authority of another Member State. Where a competent authority concludes that a benchmark fulfils the conditions set out in the first subparagraph, the competent authority shall prepare a draft decision to designate the benchmark as significant and notify that draft decision to the administrator concerned and, where relevant, to the competent authority of the Member State where the administrator is located. The designating competent authority shall also consult ESMA on the draft decision. The administrator and, where applicable, the competent authority of the Member State where the administrator is located shall have 15 working days from the date of notification of the draft decision of the designating competent authority to provide observations and comments in writing. The designating competent authority shall inform ESMA of the observations and comments received and shall duly consider those observations and comments before adopting a final decision. The designating competent authority shall notify ESMA of its final decision and shall publish the decision, including the reasons therefor and the legal obligations on the administrator arising therefrom, on its website without undue delay. Where a competent authority designates a benchmark as significant contrary to the advice issued by ESMA under paragraph 4, it shall immediately publish on its website a notice fully explaining its reasons for doing so. 4. When consulted by a competent authority on the intended designation of a benchmark as significant in accordance with paragraph 3, first subparagraph, ESMA shall, within 3 months of that consultation, issue advice taking into account the following factors, in light of the specific characteristics of the benchmark concerned: (a) whether the consulting competent authority has sufficiently substantiated its assessment that the conditions referred to in paragraph 3, first subparagraph, are fulfilled; (b) whether, in the event that the benchmark ceases to be provided, or is provided on the basis of input data that are no longer fully representative of the underlying market or economic reality or that are unreliable, there would be significant and adverse impacts on market integrity, financial stability, consumers, the real economy, or the financing of households and businesses in Member States other than the Member State of the consulting competent authority. For the purposes of point (b) of this paragraph, ESMA shall take into account any information provided by the consulting competent authority pursuant to paragraph 3, third subparagraph. 5. Where ESMA finds that a benchmark fulfils the conditions laid down in paragraph 3, first subparagraph, in more than one Member State, it shall inform the competent authorities of the Member States concerned thereof. The competent authorities of the Member States concerned shall agree on which of them is to designate the benchmark as significant. Where the competent authorities do not reach such an agreement, they shall refer the matter to ESMA, which shall settle that disagreement in accordance with Article 19 of Regulation (EU) No 1095/2010. 6. ESMA may, upon the request of a competent authority, or on its own initiative, designate a benchmark provided by an administrator located in a third country that does not reach the threshold referred to in paragraph 1, point (a), as significant where that benchmark fulfils the following conditions: (a) the benchmark has no, or very few, appropriate market-led substitutes; and (b) in the event that the benchmark ceases to be provided, or is provided on the basis of input data that are no longer fully representative of the underlying market or economic reality or that are unreliable, there would be significant and adverse impacts on market integrity, financial stability, consumers, the real economy, or the financing of households and businesses in one or more Member States. ESMA shall, prior to the designation decision and as soon as possible, inform the administrator of the benchmark of its intention and invite that administrator to provide ESMA within 15 working days with a reasoned statement containing any relevant information for the purposes of the assessment related to the designation of the benchmark as significant. Where applicable, ESMA shall invite, as soon as possible, the competent authority of the third country where the administrator is located to provide any relevant information for the purposes of the assessment related to the designation of the benchmark as significant. ESMA shall provide reasons for any designation decision, taking into account whether there is sufficient evidence that the conditions referred to in the first subparagraph are fulfilled in light of the specific characteristics of the benchmark concerned. ESMA shall publish its reasoned decision on its website and shall notify the requesting competent authority of it without undue delay. 7. A competent authority may designate a benchmark provided by an administrator located in the Union that does not fulfil the condition laid down in paragraph 1, point (a), as significant where that benchmark fulfils the following conditions: (a) its administrator has submitted a written request to that competent authority for that benchmark to be designated as significant, clearly setting out the reasons for such request; and (b) the benchmark is used directly or indirectly within a combination of benchmarks within the Union as a reference for financial instruments or financial contracts or for measuring the performance of investment funds that have a total average value of at least EUR 20 billion over the last 6 months. The competent authority shall refuse to designate a benchmark as significant where it has grounds to consider that the request to do so was inaccurate or misleading. The designating competent authority shall notify ESMA of any decision to designate a benchmark as significant, and publish the decision, including the reasons therefor and the legal obligations on the administrator arising therefrom, on its website without undue delay. 8. Where the administrator of a benchmark designated in accordance with paragraph 7 wishes to have that designation lifted, it shall address a written request to that effect to its competent authority at the earliest 4 years from the date when that benchmark was designated. The competent authority shall revoke the designation unless the condition laid down in paragraph 1, point (a), or the conditions laid down in paragraph 3 are fulfilled. The decision to revoke the designation shall be taken at the latest 3 months from the date of the request. The competent authority shall publish the decision revoking the designation on its website. The decision shall set out the date on which it is to have effect, which shall be no later than 12 months from its publication. 9. The Commission shall be empowered, after consulting ESMA, to supplement this Regulation by adopting delegated acts in accordance with Article 49 to specify: (a) the calculation method, including potential data sources, to be used to determine the threshold referred to in paragraph 1, point (a), of this Article; (b) the criteria to assess when a benchmark reached the threshold referred to in paragraph 1, point (a), of this Article; (c) the information that competent authorities are obliged to provide when consulting ESMA as required pursuant to paragraph 3 of this Article; (d) the criteria referred to in paragraph 4, point (b), of this Article, taking into consideration any data which help assess whether the impact of the cessation or unreliability of the benchmark on market integrity, financial stability, consumers, the real economy, or the financing of households and businesses in one or more Member States is significant and adverse. 10. By 31 December 2028, the Commission shall, in cooperation with ESMA, present a report to the European Parliament and to the Council on the adequacy of the threshold referred to in paragraph 1, point (a), in light of market, price and regulatory developments. That report shall be accompanied, where appropriate, by a legislative proposal.

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33. 024A Article 24a

    Article 24a Requirements for administrators of significant benchmarks 1. Within 60 working days of the notification referred to in Article 24(2), the administrator of a benchmark fulfilling the condition referred to in Article 24(1), point (a), shall seek authorisation or registration with the competent authority of the Member State where it is located. Where that administrator is located in a third country and unless the benchmark is covered by an equivalence decision adopted pursuant to Article 30, that administrator shall, within 60 working days of the notification referred to in Article 24(2), seek either of the following: (a) recognition with ESMA pursuant to the procedure set out in Article 32; (b) endorsement pursuant to the procedure set out in Article 33, in which case the administrator is to select an endorsing administrator in the Union that submits an application to ESMA. 2. Within 60 working days of a designation as referred to in Article 24(3), the administrator of the benchmark, unless that administrator is already authorised or registered, shall seek authorisation or registration with the competent authority of the Member State where it is located in accordance with Article 34. 3. Within 60 working days of a designation as referred to in Article 24(6), the administrator of the benchmark, unless the benchmark is covered by an equivalence decision adopted pursuant to Article 30, shall seek either of the following: (a) recognition with ESMA pursuant to the procedure set out in Article 32; (b) endorsement pursuant to the procedure set out in Article 33, in which case the administrator is to select an endorsing administrator in the Union that submits an application to ESMA. 4. Within 60 working days of a designation as referred to in Article 24(7), the administrator of the benchmark, unless that administrator is already authorised or registered, shall seek authorisation or registration with the designating competent authority in accordance with Article 34. 5. ESMA and the competent authorities shall make use of the supervisory and sanction powers they are entrusted with pursuant to this Regulation to ensure that the administrators comply with their obligations. 6. The competent authority or ESMA, as applicable, shall issue a public notice stating that a significant benchmark provided by an administrator does not comply with this Regulation, and that users are to refrain from using that benchmark, where any of the following conditions is fulfilled: (a) within 60 working days of the notification referred to in Article 24(2), of the designation referred to in Article 24(3) or of the designation referred to in Article 24(6), the administrator concerned has not initiated procedures to comply with paragraph 1, 2 or 3 of this Article, respectively; (b) the authorisation, registration, recognition or endorsement procedures have failed; (c) ESMA has withdrawn the registration of the administrator concerned in accordance with Article 31; (d) ESMA has withdrawn or suspended the recognition of the administrator concerned in accordance with Article 32(8); (e) the endorsement of the administrator concerned has ceased in accordance with Article 33(6); (f) the competent authority has withdrawn or suspended the authorisation or registration of the administrator concerned in accordance with Article 35. Competent authorities shall notify ESMA of all issued public notices without undue delay. ESMA shall publish all issued public notices on its website. ESMA and the competent authority shall remove the public notice without undue delay as soon as the reason for which it was issued is no longer valid.

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34. 025 Article 25

    Article 25 Exemptions from specific requirements for significant benchmarks 1. An administrator may choose not to apply Article 4(2), points (c), (d) and (e) of Article 4(7), point (b) of Article 11(3) or Article 15(2) with respect to its significant benchmark where that administrator considers that the application of one or more of those provisions would be disproportionate taking into account the nature or impact of the benchmark or the size of the administrator. 2. In the event that an administrator chooses not to apply one or more of the provisions referred to in paragraph 1, it shall immediately notify the competent authority and provide it with all relevant information confirming the administrator's assessment that the application of one or more of those provisions would be disproportionate taking into account the nature or impact of the benchmarks or the size of the administrator. 3. A competent authority may decide that the administrator of a significant benchmark is nevertheless to apply one or more of the requirements laid down in Article 4(2), points (c), (d) and (e) of Article 4(7), point (b) of Article 11(3) and Article 15(2) if it considers that it would be appropriate taking into account the nature or the impact of the benchmarks or the size of the administrator. In its assessment, the competent authority shall, based on the information provided by the administrator, take into account the following criteria: (a) the vulnerability of the benchmark to manipulation; (b) the nature of the input data; (c) the level of conflicts of interest; (d) the degree of discretion of the administrator; (e) the impact of the benchmark on markets; (f) the nature, scale and complexity of the provision of the benchmark; (g) the importance of the benchmark to financial stability; (h) the value of financial instruments, financial contracts or investment funds that reference the benchmark; (i) the administrator's size, organisational form or structure. 4. Within 30 days of receipt of a notification from an administrator under paragraph 2, the competent authority shall notify that administrator of its decision to apply an additional requirement pursuant to paragraph 3. In the event that the notification to the competent authority is made during the course of an authorisation or registration procedure, the deadlines set out in Article 34 shall apply. 5. When exercising its supervisory powers in accordance with Article 41, a competent authority shall regularly review whether its assessment pursuant to paragraph 3 of this Article is still valid. 6. If a competent authority finds, on reasonable grounds, that the information submitted to it pursuant to paragraph 2 of this Article is incomplete or that supplementary information is needed, the 30-day time limit referred to in paragraph 4 of this Article shall apply only from the date on which such complementary information is provided by the administrator, unless the deadlines of Article 34 apply pursuant to paragraph 4 of this Article. 7. Where an administrator of a significant benchmark does not comply with one or more of the requirements laid down in Article 4(2), points (c), (d) and (e) of Article 4(7), point (b) of Article 11(3) and Article 15(2), it shall publish and maintain a compliance statement that clearly states why it is appropriate for that administrator not to comply with those provisions. 8. ESMA shall develop draft implementing technical standards to develop a template for the compliance statement referred to in paragraph 7. ESMA shall submit the draft implementing technical standards referred to in the first subparagraph to the Commission by 1 April 2017. Power is conferred to the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010. 9. ESMA shall develop draft regulatory technical standards to specify further the criteria referred to in paragraph 3. ESMA shall submit those draft regulatory technical standards to the Commission by 1 April 2017. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010. 10. This Article shall not apply to commodity benchmarks.

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35. 026 Article 26

    Article 26 Non-significant benchmarks 1. An administrator may choose not to apply Articles 4(2), points (c), (d) and (e) of Article 4(7), Articles 4(8), 5(2), 5(3), 5(4), 6(1), 6(3), 6(5), 7(2), point (b) of Article 11(1), points (b) and (c) of Article 11(2), and Articles 11(3), 13(2), 14(2), 15(2), 16(2) and (3) with respect to its non-significant benchmarks. 2. An administrator shall immediately notify its competent authority when the administrator's non-significant benchmark exceeds the threshold mentioned in point (a) of Article 24(1). In that case, it shall comply with the requirements applicable to significant benchmarks within three months. 3. Where an administrator of a non-significant benchmark chooses not to apply one or more of the provisions referred to in paragraph 1, it shall publish and maintain a compliance statement which shall clearly state why it is appropriate for that administrator not to comply with those provisions. The administrator shall provide the compliance statement to its competent authority. 4. The relevant competent authority shall review the compliance statement referred to in paragraph 3 of this Article. The competent authority may also request additional information from the administrator in respect of its non-significant benchmarks in accordance with Article 41 and may require changes to ensure compliance with this Regulation. 5. ESMA shall develop draft implementing technical standards to develop a template for the compliance statement referred to in paragraph 3. ESMA shall submit the draft implementing technical standards referred to in the first subparagraph to the Commission by 1 April 2017. Power is conferred to the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010. 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.

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36. 027 Article 27

    Article 27 Benchmark statement 1. Within two weeks of the inclusion of an administrator in the register referred to in Article 36, the administrator shall publish, by means that ensure fair and easy access, a benchmark statement for each benchmark or, where applicable, for each family of benchmarks, that may be used in the Union in accordance with Article 29. Where that administrator begins providing a new benchmark or family of benchmarks that may be used in the Union in accordance with Article 29, the administrator shall publish, within two weeks and by means that ensure a fair and easy access, a benchmark statement for each new benchmark or, where applicable, family of benchmarks. The administrator shall review and, where necessary, update the benchmark statement for each benchmark or family of benchmarks in the event of any changes to the information to be provided under this Article and at least every two years. The benchmark statement shall: (a) clearly and unambiguously define the market or economic reality measured by the benchmark and the circumstances in which such measurement may become unreliable; (b) lay down technical specifications that clearly and unambiguously identify the elements of the calculation of the benchmark in relation to which discretion may be exercised, the criteria applicable to the exercise of such discretion and the position of the persons that can exercise discretion, and how such discretion may be subsequently evaluated; (c) provide notice of the possibility that factors, including external factors beyond the control of the administrator, may necessitate changes to, or the cessation of, the benchmark; and (d) advise users that changes to, or the cessation of, the benchmark may have an impact upon the financial contracts and financial instruments that reference the benchmark or the measurement of the performance of investment funds. 2. A benchmark statement shall contain at least: (a) the definitions for all key terms relating to the benchmark; (b) the rationale for adopting the benchmark methodology and procedures for the review and approval of the methodology; (c) the criteria and procedures used to determine the benchmark, including a description of the input data, the priority given to different types of input data, the minimum data needed to determine a benchmark, the use of any models or methods of extrapolation and any procedure for rebalancing the constituents of a benchmark's index; (d) the controls and rules that govern any exercise of judgement or discretion by the administrator or any contributors, to ensure consistency in the use of such judgement or discretion; (e) the procedures which govern the determination of the benchmark in periods of stress or periods where transaction data sources may be insufficient, inaccurate or unreliable and the potential limitations of the benchmark in such periods; (f) the procedures for dealing with errors in input data or in the determination of the benchmark, including when a re-determination of the benchmark is required; and (g) the identification of potential limitations of the benchmark, including its operation in illiquid or fragmented markets and the possible concentration of inputs. 2a. For significant equity and bond benchmarks, as well as for EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks, benchmark administrators shall disclose in their benchmark statements details on whether, and to what extent, a degree of overall alignment with the target of reducing carbon emissions or the attainment of the objectives of the Paris Agreement is ensured in accordance with the disclosure rules for financial products in Article 9(3) of Regulation (EU) 2019/2088 of the European Parliament and of the Council. 2aa. Where a benchmark or family of benchmarks includes in its legal or marketing documentation any reference to the consideration of ESG factors, the administrator shall publish, by means that ensure fair and easy access, an explanation of how ESG factors are reflected for each of the elements referred to in paragraph 2. For a benchmark or family of benchmarks that are subject to the publication of a benchmark statement pursuant to paragraph 1, that explanation shall be included in that benchmark statement. 2b. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by further specifying the information to be provided pursuant to paragraphs 2a and 2aa of this Article, as well as the standard format to be used for references to ESG factors to enable market participants to make well-informed choices and to ensure the technical feasibility of compliance with those paragraphs. 3. ESMA shall develop draft regulatory technical standards to specify further the contents of a benchmark statement and the cases in which an update of such statement is required. ESMA shall distinguish between the different types of benchmarks and sectors as set out in this Regulation and shall take into account the principle of proportionality. ESMA shall submit those draft regulatory technical standards to the Commission by 1 April 2017. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010.

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37. 028 Article 28

    Article 28 Changes to and cessation of a benchmark 1. An administrator shall publish, together with the benchmark statement referred to in Article 27, a procedure concerning the actions to be taken by the administrator in the event of changes to or the cessation of a benchmark which may be used in the Union in accordance with Article 29(1). The procedure may be drafted, where applicable, for families of benchmarks and shall be updated and published whenever a material change occurs. 2. Supervised entities other than an administrator as referred to in paragraph 1 that use a benchmark shall produce and maintain robust written plans setting out the actions that they would take in the event that a benchmark materially changes or ceases to be provided. Where feasible and appropriate, such plans shall designate one or several alternative benchmarks that could be referenced to substitute the benchmarks that would no longer be provided, indicating the reasons for the suitability of such alternative benchmarks. The supervised entities shall, upon request and without undue delay, provide the relevant competent authority with those plans and any updates and shall reflect them in fallback provisions applicable to financial contracts, financial instruments and investment funds.

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38. 028A Article 28a

    Article 28a Accessibility of information on the European single access point 1. From 10 January 2028, when making public any information referred to in Article 4(5), Article 11(1), point (c), Articles 12(3), 13(1), 25(7), 26(3), 27(1) and 28(1) of this Regulation, the administrator shall submit that information at the same time to the relevant collection body referred to in paragraph 3 of this Article for the purpose of making it accessible on the European single access point (ESAP) established under Regulation (EU) 2023/2859 of the European Parliament and of the Council. That information shall comply with the following requirements: (a) be submitted in a data extractable format as defined in Article 2, point (3), of Regulation (EU) 2023/2859 or, where required by Union law, in a machine-readable format, as defined in Article 2, point (4), of that Regulation; (b) be accompanied by the following metadata: (i) all the names of the administrator to which the information relates; (ii) for legal persons, the legal entity identifier of the administrator, as specified pursuant to Article 7(4), point (b), of Regulation (EU) 2023/2859; (iii) for legal persons, the size of the administrator by category, as specified pursuant to Article 7(4), point (d), of that Regulation; (iv) the type of information, as classified pursuant to Article 7(4), point (c), of that Regulation; (v) an indication of whether the information contains personal data. 2. For the purposes of paragraph 1, point (b)(ii), administrators that are legal persons shall obtain a legal entity identifier. 3. For the purpose of making the information referred to in paragraph 1 of this Article accessible on ESAP, the collection body as defined in Article 2, point (2), of Regulation (EU) 2023/2859 shall be the competent authority. 4. From 10 January 2028, the information referred to in Article 45(1) of this Regulation shall be made accessible on ESAP. For that purpose, the collection body as defined in Article 2, point (2), of Regulation (EU) 2023/2859 shall be the competent authority. That information shall comply with the following requirements: (a) be submitted in a data extractable format as defined in Article 2, point (3), of Regulation (EU) 2023/2859; (b) be accompanied by the following metadata: (i) all the names of the administrator to which the information relates; (ii) where available, the legal entity identifier of the administrator, as specified pursuant to Article 7(4), point (b), of Regulation (EU) 2023/2859; (iii) the type of information, as classified pursuant to Article 7(4), point (c), of that Regulation; (iv) an indication of whether the information contains personal data. 5. From 10 January 2028, the information referred to in Article 36 of this Regulation shall be made accessible on ESAP. For that purpose, the collection body as defined in Article 2, point (2), of Regulation (EU) 2023/2859 shall be ESMA. That information shall comply with the following requirements: (a) be submitted in a data extractable format as defined in Article 2, point (3), of Regulation (EU) 2023/2859; (b) be accompanied by the following metadata: (i) all the names of the administrator to which the information relates; (ii) where available, the legal entity identifier of the administrator, as specified pursuant to Article 7(4), point (b), of that Regulation; (iii) the type of information, as classified pursuant to Article 7(4), point (c), of that Regulation; (iv) and indication of whether the information contains personal data. 6. For the purpose of ensuring the efficient collection and management of information submitted in accordance with paragraph 1, ESMA shall develop draft implementing technical standards to specify: (a) any other metadata to accompany the information; (b) the structuring of data in the information; (c) for which information a machine-readable format is required and, in such cases, which machine-readable format is to be used. For the purposes of point (c), ESMA shall assess the advantages and disadvantages of different machine-readable formats and conduct appropriate field tests. ESMA shall submit those draft implementing technical standards to the Commission. Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010. 7. Where necessary, ESMA shall adopt guidelines to ensure that the metadata submitted in accordance with paragraph 6, first subparagraph, point (a), are correct.

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39. 029 Article 29

    Article 29 Use of critical benchmarks, significant benchmarks, commodity benchmarks subject to Annex II, EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks 1. A supervised entity shall not add new references to a significant benchmark or a combination of such benchmarks in the Union where that benchmark or combination of benchmarks is the object of a public notice issued by a competent authority or ESMA in accordance with Article 24a(6). A supervised entity shall not add new references to a critical benchmark, a commodity benchmark subject to Annex II, an EU Climate Transition Benchmark, an EU Paris-aligned Benchmark or a combination that includes any such benchmarks in the Union where the administrator of those benchmarks is not included in the register referred to in Article 36. Supervised entities shall regularly consult ESAP or the register referred to in Article 36 to verify the regulatory status of the administrators of critical benchmarks, significant benchmarks, commodity benchmarks subject to Annex II, EU Climate Transition Benchmarks or EU Paris-Aligned Benchmarks they intend to use. By way of derogation from the first subparagraph, and where necessary to avoid serious market disruptions, ESMA or the competent authority, as applicable, may allow the use of a benchmark subject to a public notice issued in accordance with Article 24a(6) for a period of between 6 and 24 months following the publication of the public notice. ESMA or the competent authority shall determine the duration of the period referred to in the third subparagraph taking into account: (a) the total value of financial instruments or financial contracts within the Union for which the benchmark serves as a reference and of investment funds within the Union for which it is used to measure the performance; (b) the availability of alternative benchmarks; (c) the complexity of replacing the benchmark and the time needed to reduce, hedge or offset existing exposures. 1a. A supervised entity may also use the replacement for a benchmark designated in accordance with Article 23b or Article 23c. 1b. A supervised entity that uses a benchmark in existing financial contracts or financial instruments that is subject to a public notice under Article 24a(6) shall replace that benchmark with an appropriate alternative within 6 months of the publication of that notice, or issue and publish a statement on its website providing clients with a reasoned explanation for not being able to do so. 2. Where the object of a prospectus to be published under Regulation (EU) 2017/1129 of the European Parliament and of the Council or Directive 2009/65/EC is transferable securities or other investment products that reference a critical benchmark, a significant benchmark, a commodity benchmark subject to Annex II of this Regulation, an EU Climate Transition Benchmark, or an EU Paris-aligned Benchmark, the issuer, offeror, or person asking for admission to trade on a regulated market shall ensure that the prospectus also includes clear and prominent information stating whether the benchmark is provided by an administrator included in the register referred to in Article 36 of this Regulation. Where the object of a prospectus to be published under Regulation (EU) 2017/1129 or Directive 2009/65/EC is transferable securities or other investment products that reference a critical benchmark, a significant benchmark, a commodity benchmark subject to Annex II of this Regulation, an EU Climate Transition Benchmark, or an EU Paris-aligned Benchmark, the issuer, offeror, or person asking for admission to trade on a regulated market shall ensure that when a public notice pursuant to Article 24a(6) of this Regulation on the benchmark used is included in the register referred to in Article 36 of this Regulation the prospectus also includes, without undue delay following the publication of the public notice, that information in a clear and prominent manner.

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40. 030 Article 30

    Article 30 Equivalence 1. In order for a benchmark or a combination of benchmarks provided by an administrator located in a third country to be used in the Union in accordance with Article 29(1), the benchmark and the administrator shall be included in the register referred to in Article 36. The following conditions shall be complied with in order to be included in the register: (a) an equivalence decision is adopted by the Commission in accordance with paragraph 2 or 3 of this Article; (b) the administrator is authorised or registered, and is subject to supervision, in the third country in question; (c) ESMA is notified by the administrator of its consent that its actual or prospective benchmarks may be used by supervised entities in the Union, of the list of the benchmarks for which they have given consent to be used in the Union and of the competent authority responsible for its supervision in the third country; and (d) the cooperation arrangements referred to in paragraph 4 of this Article are operational. 2. The Commission may adopt an implementing decision stating that the legal framework and supervisory practice of a third country ensures that: (a) administrators authorised or registered in that third country comply with binding requirements which are equivalent to the requirements under this Regulation, in particular taking account of whether the legal framework and supervisory practice of a third country ensures compliance with the IOSCO principles for financial benchmarks or, where applicable, with the IOSCO principles for PRAs; and (b) the binding requirements are subject to effective supervision and enforcement on an on-going basis in that third country. 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 basis and to the ability of ESMA to effectively exercise the monitoring responsibilities referred to in Article 33 of Regulation (EU) No 1095/2010. Such implementing decision shall be adopted in accordance with the examination procedure referred to in Article 50(2). 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. 3. Alternatively, the Commission may adopt an implementing decision stating that: (a) binding requirements in a third country with respect to specific administrators or specific benchmarks or families of benchmarks are equivalent to the requirements under this Regulation, in particular taking account of whether the legal framework and supervisory practice of a third country ensures compliance with the IOSCO principles for financial benchmarks or, where applicable, with the IOSCO principles for PRAs; and (b) such specific administrators or specific benchmarks or families of benchmarks are subject to effective supervision and enforcement on an on-going basis in that third country. 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 basis and to the ability of ESMA to effectively exercise the monitoring responsibilities referred to in Article 33 of Regulation (EU) No 1095/2010. Such implementing decision shall be adopted in accordance with the examination procedure referred to in Article 50(2). 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 account whether a third country in question is, in accordance with a delegated act adopted pursuant to Article 9 of Directive (EU) 2015/849 of the European Parliament and of the Council, on the list of jurisdictions which have strategic deficiencies in their national anti-money laundering and countering the financing of terrorism regimes that pose significant threats to the financial system of the Union. Such arrangements shall specify at least: (a) the mechanism for the exchange of information between ESMA and the competent authorities of third countries concerned, including access to all relevant information regarding the administrator authorised in that third country that is requested by ESMA; (b) the mechanism for prompt notification to ESMA where a third country competent authority deems that the administrator authorised in that third country that it is supervising is in breach of the conditions of its authorisation or other national legislation in the third country; (c) the procedures concerning the coordination of supervisory activities, including on-site inspections. 5. ESMA shall develop draft regulatory technical standards to determine the minimum content of the cooperation arrangements referred to in paragraph 4 so as to ensure that the competent authorities and ESMA are able to exercise all their supervisory powers under this Regulation. ESMA shall submit those draft regulatory technical standards to the Commission by 1 April 2017. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010.

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41. 031 Article 31

    Article 31 Withdrawal of registration of an administrator located in a third country 1. ESMA shall withdraw the registration of an administrator located in a third country by removing that administrator from the register referred to in Article 36 where it has well-founded reasons, based on documented evidence, that the administrator: (a) is acting in a manner which is clearly prejudicial to the interests of the users of its benchmarks or the orderly functioning of markets; or (b) has seriously infringed the national legislation in the third country or other provisions applicable to it in the third country and on the basis of which the Commission has adopted the implementing decision in accordance with Article 30(2) or (3). 2. ESMA shall take a decision under paragraph 1 only if the following conditions are fulfilled: (a) ESMA has referred the matter to the competent authority of the third country and that competent authority has not taken the appropriate measures needed to protect investors and the orderly functioning of the markets in the Union, or has failed to demonstrate that the administrator concerned complies with the requirements applicable to it in the third country; (b) ESMA has informed the competent authority of the third country of its intention to withdraw the registration of the administrator, at least 30 days before the withdrawal. 3. ESMA shall inform the other competent authorities of any measure adopted in accordance with paragraph 1 without delay and shall publish its decision on its website.

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42. 032 Article 32

    Article 32 Recognition of an administrator located in a third country 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 accordance with this Article. 2. An administrator of a significant benchmark, of an EU Paris-aligned Benchmark, of an EU Climate Transition Benchmark or of a commodity benchmark subject to Annex II located in a third country that intends to obtain recognition shall comply with this Regulation, with the exception of Article 11(4) and Articles 16, 20, 21 and 23. The administrator may fulfil that condition by applying the IOSCO principles for financial benchmarks or the IOSCO principles for PRAs, as applicable, provided that such application is equivalent to compliance with this Regulation, with the exception of Article 11(4) and Articles 16, 20, 21 and 23. When determining whether the condition referred to in the first subparagraph is fulfilled and assessing the compliance with the IOSCO principles for financial benchmarks or the IOSCO principles for PRAs, as applicable, ESMA may take into account: (a) an assessment of the administrator by an independent external auditor; (b) a certification provided by the competent authority of the administrator in the third country where the administrator is located. Where, and to the extent that, an administrator located in a third country is able to demonstrate that a benchmark it provides is a regulated-data benchmark, or a commodity benchmark subject to Annex II, the administrator shall not be obliged to comply with the requirements which, pursuant to Articles 17 and 19, are not applicable to the provision of regulated-data benchmarks and of commodity benchmarks subject to Annex II. 3. An administrator located in a third country intending to obtain recognition shall have a legal representative. The legal representative shall be a legal person located in the Union and expressly appointed by that administrator to act on behalf of that administrator with regard to the administrator’s obligations under this Regulation. The legal representative shall, together with the administrator, perform the oversight function relating to the provision of benchmarks performed by the administrator under this Regulation and be accountable to ESMA. ESMA may impose a supervisory measure in accordance with Article 48e, or a fine in accordance with Article 48f, on the administrator or on the legal representative for an infringement listed in Article 42(1), point (a), or in relation to any failure to cooperate or comply in an investigation or with an inspection or request covered by Section 1 of Chapter 4, as applicable. 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 entity is located. Such supervised entity shall be appointed as the legal representative for the purposes of paragraph 3; (b) if point (a) does not apply, where an administrator is part of a group that contains more than one supervised entity located in the Union, the Member State of reference shall be the Member State where the highest number of supervised entities are located or, in the event that there is an equal number of supervised entities, the Member State of reference shall be the one where the value of financial instruments, financial contracts or investment funds that reference the benchmark is highest. One of the supervised entities located in the Member State of reference determined pursuant to this point shall be appointed as the legal representative for the purposes of paragraph 3; (c) if neither point (a) nor (b) of this paragraph applies, where one or more benchmarks provided by the administrator are used as a reference for financial instruments admitted to trading in a trading venue as defined in point (24) of Article 4(1) of Directive 2014/65/EU in one or more Member States, the Member State of reference shall be the Member State where the financial instrument referencing any of those benchmarks was admitted to trading or traded on a trading venue for the first time and is still traded. If the relevant financial instruments were admitted to trading or traded for the first time simultaneously on trading venues in different Member States, and are still traded, the Member State of reference shall be the one where the value of financial instruments, financial contracts or investment funds that reference the benchmark is highest; (d) if points (a), (b) and (c) do not apply, where one or more benchmarks provided by the administrator are used by supervised entities in more than one Member State, the Member State of reference shall be the Member State where the highest number of such supervised entities are located or, in the event that there is an equal number of supervised entities, the Member State of reference shall be the one where the value of financial instruments, financial contracts or investment funds that reference the benchmark is highest; (e) if points (a), (b), (c) and (d) do not apply and if the administrator enters into an agreement consenting to the use of a benchmark it provides with a supervised entity, the Member State of reference shall be the Member State where such supervised entity is located. 5. An administrator located in a third country intending to obtain recognition as referred to in paragraph 2 shall apply for recognition with ESMA. The applicant administrator shall provide all information necessary to satisfy ESMA that it has established, at the time of recognition, all the necessary arrangements to meet the requirements laid down in paragraph 2 with respect to any of its benchmarks that are significant pursuant to Article 24, that are EU Paris-aligned benchmarks or EU Climate Transition benchmarks, or that are commodity benchmarks subject to Annex II. Where applicable, the applicant administrator shall indicate the competent authority in the third country responsible for its supervision. Within 15 working days of receipt of the application, ESMA shall assess whether the application is complete and shall notify the applicant accordingly. Where the application is incomplete, ESMA shall request the applicant to submit the missing information. Upon the submission by the applicant of the information requested, ESMA shall reassess, within 15 working days of receipt of the additional information, whether the application is complete and shall notify the applicant accordingly. Within 90 working days of receipt of the complete application, ESMA shall verify that the conditions laid down in paragraphs 2 and 3 are fulfilled. Where ESMA considers that the conditions laid down in paragraphs 2 and 3 are not fulfilled, it shall refuse the recognition request and set out the reasons for that refusal. In addition, no recognition shall be granted unless the following additional conditions are fulfilled: (a) where an administrator located in a third country is subject to supervision, an appropriate cooperation arrangement is in place between ESMA and the competent authority of the third country where the administrator is located, in compliance with the regulatory technical standards adopted pursuant to Article 30(5), to ensure an efficient exchange of information that enables the competent authority of that third country to carry out its duties in accordance with this Regulation; (b) the effective exercise by ESMA of its supervisory functions under this Regulation is neither prevented by the laws, regulations or administrative provisions of the third country where the administrator is located, nor, where applicable, by limitations in the supervisory and investigatory powers of that third country’s competent authority. 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, without undue delay, notify ESMA thereof. It shall support such assessment with the information provided by the administrator in the relevant application for recognition. 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, address whether ESMA considers that the conditions for such type are fulfilled on the basis of the information provided by the administrator in the application for recognition. 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 with that advice. ESMA may also decide, on a case-by-case basis, to publish the reasons provided by the competent authority for not complying with that advice. The competent authority concerned shall receive advance notice of such publication. 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 applicable, the competent authority responsible for its supervision in the third country. 8. ESMA shall suspend or, where appropriate, withdraw the recognition granted in accordance with paragraph 5 where it has well-founded reasons, based on documented evidence, to consider that the administrator: (a) is acting in a manner which is clearly prejudicial to the interests of users of its benchmarks or to the orderly functioning of markets; (b) has seriously infringed the relevant requirements set out in this Regulation; (c) made false statements or used any other irregular means to obtain the recognition. 9. ESMA may develop draft regulatory technical standards to determine the form and content of the application referred to in paragraph 5 and, in particular, the presentation of the information required in paragraph 6. In the event that such draft regulatory technical standards are developed, ESMA shall submit them to the Commission. Power is conferred on the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010.

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43. 033 Article 33

    Article 33 Endorsement of benchmarks provided in a third country 1. An administrator located in the Union and authorised or registered in accordance with Article 34, with a clear and well-defined role under the control or accountability framework of an administrator located in a third country, which is able to monitor effectively the provision of a benchmark, may apply to ESMA to endorse a benchmark or a family of benchmarks provided in a third country for their use in the Union, provided that all of the following conditions are fulfilled: (a) the endorsing administrator or other supervised entity has verified and is able to demonstrate on an on-going basis to its competent authority that the provision of the benchmark or family of benchmarks to be endorsed fulfils, on a mandatory or on a voluntary basis, requirements which are at least as stringent as the requirements of this Regulation; (b) the endorsing administrator or other supervised entity has the necessary expertise to monitor effectively the activity of the provision of a benchmark in a third country and to manage the associated risks; (c) there is an objective reason to provide the benchmark or family of benchmarks in a third country and for said benchmark or family of benchmarks to be endorsed for their use in the Union. For the purpose of point (a), when assessing whether the provision of the benchmark or family of benchmarks to be endorsed fulfils requirements which are at least as stringent as the requirements of this Regulation, the competent authority may take into account whether the compliance of the provision of the benchmark or family of benchmarks with the IOSCO principles for financial benchmarks or the IOSCO principles for PRAs, as applicable, would be equivalent to compliance with the requirements of this Regulation. 2. An administrator that submits an application for endorsement as referred to in paragraph 1 shall provide all information necessary to satisfy ESMA that, at the time of application, all the conditions referred to in that paragraph are fulfilled. 3. Within 90 working days of receipt of the application for endorsement referred to in paragraph 1, ESMA shall examine the application and adopt a decision either to authorise the endorsement or to refuse it. Where ESMA authorises the endorsement, the competences in relation to the authorisation or registration, as applicable, of the administrator that applied for endorsement shall be transferred to ESMA within 6 months of the authorisation of endorsement. 4. An endorsed benchmark or an endorsed family of benchmarks shall be considered to be a benchmark or family of benchmarks provided by the endorsing administrator. The endorsing administrator shall not use the endorsement with the intention of avoiding the requirements of this Regulation. 5. An administrator that has endorsed a benchmark or a family of benchmarks provided in a third country shall remain fully responsible for such a benchmark or family of benchmarks and for compliance with the obligations under this Regulation. 6. Where ESMA has well-founded reasons to consider that the conditions laid down under paragraph 1 of this Article are no longer fulfilled, it shall have the power to require the endorsing administrator to cease the endorsement. Article 28 shall apply in case of cessation of the endorsement. 7. The Commission shall be empowered to adopt delegated acts in accordance with Article 49 concerning measures to determine the conditions under which ESMA may assess whether there is an objective reason for the provision of a benchmark or family of benchmarks in a third country and their endorsement for their use in the Union. The Commission shall take into account elements such as the specificities of the underlying market or economic reality the benchmark intends to measure, the need for proximity of the provision of the benchmark to such market or economic reality, the need for proximity of the provision of the benchmark to contributors, the material availability of input data due to different time zones, and specific skills required in the provision of the benchmark.

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44. 034 Article 34

    Article 34 Authorisation and registration of an administrator 1. A natural or legal person located in the Union that acts or intends to act as an administrator shall apply to the competent authority designated under Article 40 of the Member State in which that person is located or to ESMA in the cases referred to in paragraph 1a of this Article in order to receive: (a) authorisation where it provides or intends to provide indices which are used or intended to be used as critical benchmarks, as significant benchmarks, as commodity benchmarks subject to Annex II, as EU Climate Transition Benchmarks or as EU Paris-aligned Benchmarks; (b) registration where it is a supervised entity, other than an administrator, that provides or intends to provide indices which are used or intended to be used as significant benchmarks, as EU Climate Transition Benchmarks or EU Paris-aligned Benchmarks, provided that the activity of provision of a benchmark is not prevented by the sectoral discipline applying to the supervised entity and that none of the indices provided would qualify as a critical benchmark. 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 Article 20(1), points (a) and (c), or if the person at the same time submits an application to ESMA pursuant to Article 33(1) to endorse a benchmark or a family of benchmarks, the application shall be addressed to ESMA. 2. An authorised or registered administrator shall comply at all times with the conditions laid down in this Regulation and shall notify the competent authority of any material changes thereof. 3. The application referred to in paragraph 1 shall be made within 30 working days of any agreement entered into by a supervised entity to use an index provided by the applicant as a reference in a financial instrument or financial contract or to measure the performance of an investment fund, or within the time limits set out in Article 24a(2) and (3), as applicable. 4. The applicant shall provide all information necessary to satisfy the competent authority that the applicant has established, at the time of authorisation or registration, all the necessary arrangements to meet the requirements laid down in this Regulation. 5. Within 15 working days of receipt of the application, the relevant competent authority shall assess whether the application is complete and shall notify the applicant accordingly. If the application is incomplete, the applicant shall submit the additional information required by the relevant competent authority. The time limit referred to in this paragraph shall apply from the date on which such additional information is provided by the applicant. 6. The relevant competent authority shall: (a) examine the application for authorisation and adopt a decision to authorise or refuse to authorise the applicant within four months of receipt of a complete application; (b) examine the application for registration and adopt a decision to register or refuse to register the applicant within 45 working days of receipt of a complete application. Within five working days of the adoption of a decision referred to in the first subparagraph, the competent authority shall notify it to the applicant. Where the competent authority refuses to authorise or to register the applicant, it shall give reasons for its decision. 7. The competent authority shall notify ESMA of any decision to authorise or to register an applicant within five working days of the date of adoption of said decision. 8. ESMA shall develop draft regulatory technical standards to specify further the information to be provided in the application for authorisation and in the application for registration, taking into account that authorisation and registration are distinct processes where authorisation requires a more extensive assessment of the administrator's application, the principle of proportionality, the nature of the supervised entities applying for registration under point (b) of paragraph 1 and the costs to the applicants and competent authorities. ESMA shall submit those draft regulatory technical standards to the Commission by 1 April 2017. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010.

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45. 035 Article 35

    Article 35 Withdrawal or suspension of authorisation or registration 1. A competent authority may withdraw or suspend the authorisation or registration of an administrator where the administrator: (a) expressly renounces the authorisation or registration or has provided no benchmarks for the preceding 12 months; (b) has obtained the authorisation or registration, or has endorsed a benchmark, by making false statements or by any other irregular means; (c) no longer meets the conditions under which it was authorised or registered; or (d) has seriously or repeatedly infringed the provisions of this Regulation. 2. The competent authority shall notify ESMA of its decision within five working days of the adoption of said decision. ESMA shall promptly update the register provided for in Article 36. 3. Following the adoption of a decision to suspend the authorisation or registration of an administrator, and where cessation of the benchmark would result in a force majeure event, or frustrate or otherwise breach the terms of any financial contract or financial instrument, or the rules of any investment fund, which references that benchmark, as specified in the delegated act adopted pursuant to Article 51(6), the provision of the benchmark in question may be permitted by the relevant competent authority of the Member State where the administrator is located until the decision of suspension has been withdrawn. During that period of time, the use of such benchmark by supervised entities shall be permitted only for financial contracts, financial instruments and investment funds that already reference the benchmark. 4. Following the adoption of a decision to withdraw the authorisation or registration of an administrator, Article 28(2) shall apply.

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46. 036 Article 36

    Article 36 Register of administrators and benchmarks 1. ESMA shall establish and maintain a public register that contains the following information: (a) the identities, including, where available, the legal entity identifier (LEI), of the administrators authorised or registered pursuant to Article 34 and the competent authorities responsible for the supervision thereof; (b) the identities, including, where available, the LEI, of administrators that comply with the conditions laid down in Article 30(1), the list of benchmarks, including, where available, their International Securities Identification Numbers (ISINs), referred to in Article 30(1), point (c), and the third country competent authorities responsible for the supervision thereof; (c) the identities, including, where available, the LEI, of the administrators that acquired recognition in accordance with Article 32, the list of benchmarks, including, where available, their ISINs, provided by those administrators which may be used in the Union and, where applicable, the third country competent authorities responsible for the supervision thereof; (d) the benchmarks, including, where available, their ISINs, that are endorsed in accordance with the procedure laid down in Article 33, the identities of their administrators, and the identities, including, where available, the LEI, of the endorsing administrators; (e) the benchmarks, including, where available, their ISINs, subject to a statement published by ESMA or a competent authority pursuant to Article 24(2), and hyperlinks to such statements; (f) the benchmarks, including, where available, their ISINs, subject to designations by competent authorities notified to ESMA pursuant to Article 24(3) or (7), and hyperlinks to such designations; (g) the benchmarks, including, where available, their ISINs, subject to designations by ESMA, and hyperlinks to such designations; (h) the benchmarks, including, where available, their ISINs, subject to public notices issued by ESMA and competent authorities pursuant to Article 24a(6), and the hyperlinks to such public notices; (i) the list of EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks, including, where available, their ISINs, available for use in the Union; (j) the list of critical benchmarks, including, where available, their ISINs; (k) the list of commodity benchmarks subject to Annex II available for use in the Union, including, where available, their ISINs. 2. The register referred to in paragraph 1 shall be publicly accessible on the website of ESMA and shall be updated promptly, as necessary.

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47. 037 Article 37

    Article 37 Delegation of tasks between competent authorities 1. In accordance with Article 28 of Regulation (EU) No 1095/2010, a competent authority may delegate its tasks under this Regulation to the competent authority of another Member State with its prior consent. The competent authorities shall notify ESMA of any proposed delegation 60 days prior to such delegation taking effect. 2. A competent authority may delegate some of its tasks under this Regulation to ESMA, subject to the agreement of ESMA. 3. ESMA shall notify the Member States of a proposed delegation within seven days. ESMA shall publish details of any agreed delegation within five working days of notification.

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48. 038 Article 38

    Article 38 Disclosure of information from another Member State A competent authority may disclose information received from another competent authority only if: (a) it has obtained the written agreement of that competent authority and the information is disclosed only for the purposes for which that competent authority gave its agreement; or (b) such disclosure is necessary for legal proceedings.

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49. 039 Article 39

    Article 39 Cooperation on on-site inspections and investigations 1. A competent authority may request the assistance of another competent authority with regard to on-site inspections or investigations. The competent authority receiving the request shall cooperate to the extent possible and appropriate. 2. A competent authority making a request referred to in paragraph 1 shall inform ESMA thereof. In the event of an investigation or inspection with cross-border effect, the competent authorities may request ESMA to coordinate the on-site inspection or investigation. 3. Where a competent authority receives a request from another competent authority to carry out an on-site inspection or an investigation, it may: (a) carry out the on-site inspection or investigation itself; (b) allow the competent authority which submitted the request to participate in the on-site inspection or investigation; (c) appoint auditors or experts to support or carry out the on-site inspection or investigation.

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50. 040 Article 40

    Article 40 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; (c) administrators endorsing benchmarks provided in a third country in accordance with Article 33. 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. 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 with the Commission, ESMA and other Member States’ competent authorities. 4. ESMA shall publish on its website a list of the competent authorities designated in accordance with paragraphs 2 and 3.

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51. 041 Article 41

    Article 41 Powers of competent authorities 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: (a) access to any document and other data in any form, and to receive or take a copy thereof; (b) require or demand information from any person involved in the provision of, and contribution to, a benchmark, including any service provider to which functions, services or activities in the provision of a benchmark have been outsourced as provided for in Article 10, as well as their principals, and if necessary, summon and question any such person with a view to obtaining information; (c) request, in relation to commodity benchmarks, information from contributors on related spot markets according, where applicable, to standardised formats and reports on transactions, and direct access to traders' systems; (d) carry out on-site inspections or investigations, at sites other than the private residences of natural persons; (e) enter premises of legal persons, without prejudice to Regulation (EU) No 596/2014, in order to seize documents and other data in any form, where a reasonable suspicion exists that documents and other data related to the subject-matter of the inspection or investigation may be relevant to prove a breach of this Regulation. Where prior authorisation is needed from the judicial authority of the Member State concerned, in accordance with national law, such power shall only be used after having obtained that prior authorisation; (f) require existing recordings of telephone conversations, electronic communications or other data traffic records held by supervised entities; (g) request the freezing or sequestration of assets or both; (h) require temporary cessation of any practice that the competent authority considers contrary to this Regulation; (i) impose a temporary prohibition on the exercise of professional activity; (j) take all necessary measures to ensure that the public is correctly informed about the provision of a benchmark, including by requiring the relevant administrator or a person that has published or disseminated the benchmark or both to publish a corrective statement about past contributions to or figures of the benchmark; (k) designate a benchmark as significant pursuant to Article 24(3); (l) in the case of reasonable grounds to suspect a breach of any of the requirements laid down in Chapter 3A of Title III, require that an administrator ceases, for a maximum period of 12 months, to: (i) provide EU Climate Transition Benchmarks or EU Paris-aligned Benchmarks; (ii) use the terms EU Climate Transition Benchmarks or EU Paris-aligned Benchmarks in the names of benchmarks it makes available for use in the Union, or in the legal or marketing documentation for those benchmarks; (iii) suggest compliance with the requirements applicable to the provision of such benchmarks in the name of the benchmarks it makes available for use in the Union, or in the legal or marketing documentation for those benchmarks. 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: (a) directly; (b) in collaboration with other authorities or with market undertakings; (c) under their responsibility by delegation to such authorities or to market undertakings; (d) by application to the competent judicial authorities. For the exercise of those powers, competent authorities shall have in place adequate and effective safeguards in regard to the right of defence and fundamental rights. 3. Member States shall ensure that appropriate measures are in place so that competent authorities have all the supervisory and investigatory powers that are necessary to fulfil their duties. 4. An administrator or any other supervised entity making information available to a competent authority in accordance with paragraph 1 shall not be considered to be in breach of any restriction on disclosure of information posed by any contractual, legislative, regulatory or administrative provision.

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52. 042 Article 42

    Article 42 Administrative sanctions and other administrative measures 1. Without prejudice to the supervisory powers of competent authorities in accordance with Article 41, and the right of Member States to provide for and impose criminal sanctions, Member States shall, in conformity with national law, provide for competent authorities to have the power to impose appropriate administrative sanctions and other administrative measures in relation to at least the following infringements: (a) any infringement of Article 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19a, 19b, 19c, 21, 23, 24, 24a, 25, 26, 27, 28, 29 or 34 where they apply; and (b) any failure to cooperate or comply in an investigation or with an inspection or request covered by Article 41. Those administrative sanctions and other administrative measures shall be effective, proportionate and dissuasive. 2. In the event of an infringement referred to in paragraph 1, Member States shall, in conformity with national law, confer on competent authorities the power to impose at least the following administrative sanctions and other administrative measures: (a) an order requiring the administrator or supervised entity responsible for the infringement to cease the conduct and to desist from repeating that conduct; (b) the disgorgement of the profits gained or losses avoided because of the infringement where those can be determined; (c) a public warning which indicates the administrator or supervised entity responsible and the nature of the infringement; (d) withdrawal or suspension of the authorisation or the registration of an administrator; (e) a temporary ban prohibiting any natural person, who is held responsible for such infringement, from exercising management functions in administrators or supervised contributors; (f) the imposition of maximum administrative pecuniary sanctions of at least three times the amount of the profits gained or losses avoided because of the infringement where those can be determined; (g) in respect of a natural person, maximum administrative pecuniary sanctions of at least: (i) for infringements of Articles 4, 5, 6, 7, 8, 9, 10, points (a), (b), (c) and (e) of Article 11(1), Article 11(2) and (3), and Articles 12, 13,14, 15, 16, 21, 23, 24, 24a, 25, 26, 27, 28, 29 and 34, 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 (ii) for infringements of point (d) of Article 11(1) or of Article 11(4), EUR or in the Member States whose official currency is not the euro, the corresponding value in the national currency on 30 June 2016; (h) in respect of a legal person, maximum administrative pecuniary sanctions of at least: (i) for infringements of Articles 4, 5, 6, 7, 8, 9, 10, points (a), (b), (c) and (e) of Article 11(1), Article 11(2) and (3), and Articles 12, 13,14, 15, 16, 21, 23, 24, 24a, 25, 26, 27, 28, 29 and 34, either 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 10 % of its total annual turnover according to the last available accounts approved by the management body, whichever is the higher; or (ii) for infringements of point (d) of Article 11(1) or of Article 11(4), either 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 its total annual turnover according to the last available accounts approved by the management body, whichever is the higher. 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, the relevant total annual turnover shall be the total annual turnover or the corresponding type of income in accordance with Council Directive 86/635/EEC for banks and Council Directive 91/674/EEC for insurance companies according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking or if the person is an association, 10 % of the aggregate turnovers of its members. 3. By 1 January 2018, Member States shall notify the rules regarding paragraphs 1 and 2 to the Commission and ESMA. Member States may decide not to lay down rules for administrative sanctions as provided for in paragraph 1 where the infringements referred to in that paragraph are subject to criminal sanctions under their national law. In that case, Member States shall communicate to the Commission and ESMA the relevant criminal law provisions along with the notification referred to in the first subparagraph of this paragraph. They shall notify the Commission and ESMA without delay of any subsequent amendment thereto. 4. Member States may provide competent authorities under national law to have other powers to impose sanctions in addition to those referred to in paragraph 1 and may provide for higher levels of sanctions than those established in paragraph 2.

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53. 043 Article 43

    Article 43 Exercise of supervisory powers and imposition of sanctions 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: (a) the gravity and duration of the infringement; (b) the criticality of the benchmark to financial stability and the real economy; (c) the degree of responsibility of the responsible person; (d) the financial strength of the responsible person, as indicated, in particular, by the total annual turnover of the responsible legal person or the annual income of the responsible natural person; (e) the level of the profits gained or losses avoided by the responsible person, insofar as they can be determined; (f) the level of cooperation of the responsible person with the competent authority, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person; (g) previous infringements by the person concerned; (h) measures taken, after the infringement, by a responsible person to prevent the repetition of the infringement. 2. In the exercise of their powers to impose administrative sanctions and other administrative measures under Article 42, competent authorities shall cooperate closely to ensure that the supervisory and investigative powers and administrative sanctions and other administrative measures produce the desired results of this Regulation. They shall also coordinate their action in order to avoid possible duplication and overlap when applying supervisory and investigative powers and administrative sanctions, including pecuniary sanctions, and other administrative measures to cross-border cases.

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54. 044 Article 44

    Article 44 Obligation to cooperate 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 to liaise with judicial authorities within their jurisdiction to receive specific information relating to criminal investigations or proceedings commenced for possible infringements of this Regulation. Those competent authorities shall provide that information to other competent authorities and to ESMA. 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 competent authorities to facilitate the recovery of pecuniary sanctions.

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55. 045 Article 45

    Article 45 Publication of decisions 1. Subject to paragraph 2, a competent authority shall publish any decision imposing an administrative sanction or other administrative measure in relation to infringements of this Regulation on its official website immediately after the person subject to that decision has been informed of that decision. Such publication shall include at least information on the type and nature of the infringement and the identity of the persons subject to the decision. The first subparagraph does not apply to decisions imposing measures that are of an investigatory nature. 2. Where a competent authority considers that the publication of the identity of the legal person or of the personal data of a natural person, would be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data, or where such publication would jeopardise the stability of financial markets or an on-going investigation, it shall do any of the following: (a) defer publication of the decision until such time as the reasons for that deferral cease to exist; (b) publish the decision on an anonymous basis in accordance with national law where such anonymous publication ensures an effective protection of the personal data concerned; (c) not publish the decision at all in the event that the competent authority is of the opinion that publication in accordance with point (a) or (b) will be insufficient to ensure: (i) that the stability of financial markets is not jeopardised; or (ii) the proportionality of the publication of such decisions with regard to measures which are deemed to be of a minor nature. Where a competent authority decides to publish a decision on an anonymous basis as referred to in point (b) of the first subparagraph, it may postpone the publication of the relevant data for a reasonable period of time where it is foreseeable that the reasons for anonymous publication shall cease to exist during that period. 3. Where the decision is subject to an appeal before a national judicial, administrative or other authority, the competent authority shall also publish, immediately, on its official website such information and any subsequent information on the outcome of such appeal. Any decision annulling a previous decision to impose a sanction or a measure shall also be published. 4. The competent authority shall ensure that any decision that is published in accordance with this Article shall remain accessible on its official website for a period of at least five years after its publication. Personal data contained in the publication shall only be kept on the official website of the competent authority for the period which is necessary in accordance with the applicable data protection rules. 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 in an annual report, together with aggregated information on all administrative sanctions and other administrative measures it has imposed pursuant to Article 48f. 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, their competent authorities shall annually provide ESMA with anonymised and aggregated data regarding all criminal investigations undertaken and criminal sanctions imposed. ESMA shall publish data on criminal sanctions imposed in an annual report.

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56. 046 Article 46

    Article 46 Colleges 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 establish a college and lead the 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. 3. Competent authorities of other Member States shall have the right to be members of the college where, if the critical benchmark in question were to cease to be provided, it would have a significant adverse impact on the market integrity, financial stability, consumers, real economy, or financing of households and businesses of those Member States. Where a competent authority intends to become a member of a college, it shall submit a request to the competent authority of the administrator containing evidence that the requirements of the first subparagraph of this paragraph are fulfilled. The relevant competent authority of the administrator shall consider the request and notify the requesting authority within 20 working days of receipt of the request whether or not it considers those requirements to be fulfilled. Where it considers those requirements not to be fulfilled, the requesting authority may refer the matter to ESMA in accordance with paragraph 9. 4. ESMA shall contribute to promoting and monitoring the efficient, effective and consistent functioning of colleges referred to in this Article in accordance with Article 21 of Regulation (EU) No 1095/2010. To that end, ESMA shall participate as appropriate and shall be considered to be a competent authority for that purpose. Where ESMA acts in accordance with Article 17(6) of Regulation (EU) No 1095/2010 regarding a critical benchmark, it shall ensure appropriate exchange of information and cooperation with the other members of the college. 5. The competent authority of an administrator shall chair the meetings of the college, coordinate the actions of the college and ensure efficient exchange of information among members of the college. Where an administrator provides more than one critical benchmark, the competent authority of that administrator may establish a single college in respect of all the benchmarks provided by that administrator. 6. The competent authority of an administrator shall establish written arrangements within the framework of the college regarding the following matters: (a) the information to be exchanged between competent authorities; (b) the decision-making process between the competent authorities and the time frame within which each decision has to be taken; (c) the cases in which the competent authorities must consult each other; (d) the cooperation to be provided under Article 23(7) and (8). 7. The competent authority of an administrator shall give due consideration to any advice provided by ESMA concerning the written arrangements under paragraph 6 before agreeing their final text. The written arrangements shall be set out in a single document containing full reasons for any significant deviation from the advice of ESMA. The competent authority of the administrator shall transmit the written arrangements to the members of the college and to ESMA. 8. Before taking any measures referred to in Article 23(6), (7) and (9), and Articles 34, 35 and 42, the competent authority of an administrator shall consult the members of the college. The members of the college shall do everything reasonable within their power to reach an agreement within the time frame specified in the written arrangements referred to in paragraph 6 of this Article. Any decision of the competent authority of the administrator to take such measures shall take into account the impact on the other Member States concerned, in particular the potential impact on the stability of their financial systems. With regard to the decision to withdraw the authorisation or registration of an administrator in accordance with Article 35, whenever the cessation of a benchmark 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 in the Union, within the meaning specified by the Commission in any delegated act adopted pursuant to Article 51(6), the competent authorities within the college shall consider whether to adopt measures to mitigate the effects referred to in this paragraph, including: (a) a change to the code of conduct referred to in Article 15, the methodology or other rules of the benchmark; (b) a transitional period, during which the procedures envisaged under Article 28(2) shall apply. 9. In the absence of agreement between the members of a college, competent authorities may refer to ESMA any of the following situations: (a) where a competent authority has not communicated essential information; (b) where, following a request made under paragraph 3, the competent authority of the administrator has notified the requesting authority that the requirements of that paragraph are not fulfilled or where it has not acted upon such request within a reasonable time; (c) where the competent authorities have failed to reach an agreement on the matters set out in paragraph 6; (d) where there is a disagreement concerning the measures to be taken in accordance with Articles 34, 35 and 42; (e) where there is a disagreement concerning the measures to be taken in accordance with Article 23(6); (f) where there is a disagreement concerning the measures to be taken in accordance with the third subparagraph of paragraph 8 of this Article. 10. In the situations referred to in points (a), (b), (c), (d) and (f) of paragraph 9, if the issue is not settled within 30 days after referral to ESMA, the competent authority of an administrator shall take the final decision and provide a detailed explanation of its decision in writing to the competent authorities referred to in that paragraph and to ESMA. The period of time referred to in point (a) of Article 34(6) shall be suspended from the date of referral to ESMA until such time as a decision is taken in accordance with the first subparagraph of this paragraph. Where ESMA considers that the competent authority of the administrator has taken any measures referred to in paragraph 8 of this Article which may not be in conformity with Union law it shall act in accordance with Article 17 of Regulation (EU) No 1095/2010. 11. In the situation referred to in point (e) of paragraph 9 of this Article, and without prejudice to Article 258 TFEU, ESMA may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010. The power of the competent authority of an administrator under Article 23(6) may be exercised until such time as ESMA publishes its decision.

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57. 047 Article 47

    Article 47 Cooperation with ESMA 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. 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. 3. ESMA shall develop draft implementing technical standards to determine the procedures and forms for exchange of information as referred to in paragraph 2. ESMA shall submit the draft implementing technical standards referred to in the first subparagraph to the Commission by 1 April 2017. Power is conferred to the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.

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58. 048 Article 48

    Article 48 Professional secrecy 1. Any confidential information received, exchanged or transmitted pursuant to this Regulation shall be subject to the conditions of professional secrecy laid down in paragraph 2. 2. The obligation of professional secrecy applies to all persons who work or who have worked for the competent authority or for any authority or market undertaking or natural or legal person to whom the competent authority has delegated its powers, including auditors and experts contracted by the competent authority. 3. Information covered by professional secrecy may not be disclosed to any other person or authority except by virtue of provisions laid down by Union or national law. 4. All information exchanged between the competent authorities under this Regulation that concerns business or operational conditions and other economic or personal affairs shall be considered confidential and shall be subject to the requirements of professional secrecy, except where the competent authority states at the time of communication that such information may be disclosed or where such disclosure is necessary for legal proceedings.

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59. 048A Article 48a

    Article 48a Exercise of the powers by ESMA 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.

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