Benchmarks Regulation

02016R1011-20250117 → 02016R1011-20260101

Article 2 Scope 1. This Regulation applies to the provision of benchmarks, the contribution of input data to a benchmark and the use of a benchmark within the Union. 1a. Titles II, III, with the exception of Articles 23a, 23b and 23c, IV, V and VI apply only in respect of critical benchmarks, significant benchmarks, EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks. 1b. By way of derogation from paragraph 1a of this Article, Article 13(1), point (d), and Article 27(2aa) apply to all benchmarks used in the Union provided by administrators that: (a) are included in the register referred to in Article 36; or (b) belong to a group with at least one administrator included in the register referred to in Article 36. 1c. By way of derogation from paragraph 1a of this Article, Article 19 applies to any commodity benchmark based on contributed input data, unless any of the following conditions is fulfilled: (a) it is a regulated-data benchmark; (b) it is a benchmark based on submissions by contributors the majority of which are supervised entities; (c) it is a critical benchmark and the underlying asset is gold, silver or platinum. 2. This Regulation shall not apply to: (a) a central bank; (b) a public authority, where it contributes data to, provides, or has control over the provision of, benchmarks for public policy purposes, including measures of employment, economic activity, and inflation; (c) a central counterparty (CCP), where it provides reference prices or settlement prices used for CCP risk-management purposes and settlement; (d) the provision of a single reference price for any financial instrument listed in Section C of Annex I to Directive 2014/65/EU; (e) the press, other media and journalists where they merely publish or refer to a benchmark as part of their journalistic activities with no control over the provision of that benchmark; (f) a natural or legal person that grants or promises to grant credit in the course of that person's trade, business or profession, only insofar as that person publishes or makes available to the public that person's own variable or fixed borrowing rates set by internal decisions and applicable only to financial contracts entered into by that person or by a company within the same group with their respective clients; (g) a commodity benchmark based on submissions from contributors the majority of which are non-supervised entities and in respect of which both of the following conditions apply: (i) the benchmark is referenced by financial instruments for which a request for admission to trading has been made on only one trading venue, as defined in point (24) of Article 4(1) of Directive 2014/65/EU, or which are traded on only one such trading venue; (ii) the total average notional value of financial instruments referencing the benchmark does not exceed EUR 100 million; 200 million over a period of 12 months; (h) an index provider in respect of an index provided by said provider where that index provider is unaware and could not reasonably have been aware that that index is used for the purposes referred to in point (3) of Article 3(1); (i) a spot foreign exchange benchmark which has been designated by the Commission in accordance with Article 18a(1).

02016R1011-20250117 → 02016R1011-20260101

Article 3 Definitions 1. For the purposes of this Regulation, the following definitions apply: (1) index means any figure: (a) that is published or made available to the public; (b) that is regularly determined: (i) entirely or partially by the application of a formula or any … 1,127 unchanged words … Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1).; (l) a trade repository as defined in point (2) of Article 2 of Regulation (EU) No 648/2012; (m) an administrator; administrator authorised or registered pursuant to Article 34; (18) financial contract means: (a) any credit agreement as defined in point (c) of Article 3 of Directive 2008/48/EC; (b) any credit agreement as defined in point (3) of Article 4 of Directive 2014/17/EU; (19) investment fund means an AIF as defined in … 688 unchanged words … and of the Council, or a regulated market considered to be equivalent under Article 2a of Regulation (EU) No 648/2012, but in each case only with reference to transaction data concerning financial instruments; (ii) an approved publication arrangement as defined in Article 2(1), point (52) (34), of Article 4(1) of Directive 2014/65/EU Regulation (EU) No 600/2014 or a consolidated tape provider as defined in Article 2(1), point (53) (35), of Article 4(1) of Directive 2014/65/EU, Regulation (EU) No 600/2014, in accordance with mandatory post-trade transparency requirements, but only with reference to transaction data concerning financial instruments that are traded on a trading venue; (iii) an approved reporting mechanism as defined in Article 2(1), point (54) (36), of Article 4(1) of Directive 2014/65/EU, Regulation (EU) No 600/2014, but only with reference to transaction data concerning financial instruments that are traded on a trading venue and that must be disclosed in accordance with mandatory post-trade transparency requirements; (iv) an electricity exchange as referred to in point (j) of Article … 501 unchanged words … Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 50(2). Where applicable, the Commission shall take into account the market or technological developments and the international convergence of supervisory practice in relation to benchmarks.

No text on either side: this unit was named by a signal that carries no text, and only the structural diff carries any.

No text on either side: this unit was named by a signal that carries no text, and only the structural diff carries any.

02016R1011-20250117 → 02016R1011-20260101

Article 13 Transparency of methodology 1. An administrator shall develop, operate and administer the benchmark and methodology transparently. To that end, the administrator shall publish or make available the following information: (a) the key elements of the methodology that the administrator uses for each benchmark provided and published or, when applicable, for each family of benchmarks provided and published; (b) details of the internal review and the approval of a given methodology, as well as the frequency of such review; (c) the procedures for consulting on any proposed material change in the administrator's methodology and the rationale for such changes, including a definition of what constitutes a material change and the circumstances in which the administrator is to notify users of any such changes; (d) where a benchmark or family of benchmarks includes in its legal or marketing documentation any reference to the consideration of ESG factors, an explanation of how the key elements of the methodology laid down in point (a) reflect ESG factors for each benchmark of those benchmarks or family of benchmarks, with the exception of interest rate and foreign exchange benchmarks. benchmarks, of how the key elements of the methodology reflect ESG factors. Benchmark administrators shall comply with the requirement laid down in point (d) of the first subparagraph by 30 April 2020. 2. The procedures required under point (c) of paragraph 1 shall provide for: (a) advance notice, with a clear time frame, that gives the opportunity to analyse and comment upon the impact of such proposed material changes; and (b) the comments referred to in point (a) of this paragraph, and the administrator's response to those comments, to be made accessible after any consultation, except where confidentiality has been requested by the originator of the comments. 2a. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by laying down the minimum content of the explanation referred to in point (d) of the first subparagraph of paragraph 1 of this Article, as well as the standard format to be used. 3. ESMA shall develop draft regulatory technical standards to specify further the information to be provided by an administrator in compliance with the requirements laid down in paragraphs 1 and 2, distinguishing for different types of benchmarks and sectors as set out in this Regulation. ESMA shall take into account the need to disclose those elements of the methodology that provide for sufficient detail to allow users to understand how a benchmark is provided and to assess its representativeness, its relevance to particular users and its appropriateness as a reference for financial instruments and contracts and the principle of proportionality. However, the ESMA draft regulatory technical standards shall not cover or apply to administrators of non-significant benchmarks. 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 Articles 10 to 14 of Regulation (EU) No 1095/2010. 4. ESMA may issue guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010, addressed to administrators of non-significant benchmarks to specify further the elements referred to in paragraph 3 of this Article.

No text on either side: this unit was named by a signal that carries no text, and only the structural diff carries any.

02016R1011-20250117 → 02016R1011-20260101

Article 18 Interest rate benchmarks The specific requirements laid down in Annex I shall apply to the provision of, and contribution to, interest rate benchmarks in addition to, or as a substitute for, the requirements of Title II. Articles 24, Article 25 and 26 shall not apply to the provision of, and contribution to, interest rate benchmarks.

02016R1011-20250117 → 02016R1011-20260101

Article 18a Spot foreign exchange benchmarks 1. The Commission may shall designate as exempted a spot foreign exchange benchmark that is administered by administrators located outside the Union where both of the following criteria are fulfilled: (a) the spot foreign exchange benchmark references a spot exchange rate of a third-country currency that is not freely convertible; to which currency controls apply; and (b) the spot foreign exchange benchmark benchmark: (i) is used on a frequent, systematic and regular basis to hedge against adverse foreign exchange rate movements. movements; or (ii) does not have an equivalent alternative benchmark provided by an administrator located in the Union. 2. By 31 December 2022, the The Commission shall conduct a public consultation to identify spot foreign exchange benchmarks that fulfil the criteria laid down in paragraph 1. 3. By 15 June 2023, Following the conclusion of the public consultation, the Commission shall adopt a delegated an implementing act in accordance with Article 49 to create a list of spot foreign exchange benchmarks that fulfil the criteria laid down in paragraph 1 of this Article. by 9 June 2026. The Commission shall update that list as appropriate.

texts differ too much for an inline diff; shown separately

before (02016R1011-20250117)

Article 19
Commodity benchmarks
1. The specific requirements laid down in Annex II shall apply instead of the requirements of Title II, with the exception of Article 10, to the provision of, and contribution to, commodity benchmarks, unless the benchmark in question is a regulated-data benchmark or is based on submissions by contributors the majority of which are supervised entities.
Articles 24, 25 and 26 shall not apply to the provision of, and contribution to, commodity benchmarks.
2. Where a commodity benchmark is a critical benchmark and the underlying asset is gold, silver or platinum, the requirements of Title II shall apply instead of Annex II.

after (02016R1011-20260101)

Article 19
Commodity benchmarks based on contributed input data
Commodity benchmarks based on contributed input data shall comply with Article 10, Titles IV, V and VI, and the specific requirements set out in Annex II.

02016R1011-20250117 → 02016R1011-20260101

Article 19a EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks 1. The requirements laid down in Annex III shall apply to the provision of, and contribution to, EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks, in addition to the requirements of Titles II, III and IV. 2. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by laying down the minimum standards for EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks to specify: (a) the criteria for the choice of the underlying assets, including, where applicable, any criteria for excluding assets; (b) the criteria and method for the weighting of the underlying assets in the benchmark; (c) the determination of the decarbonisation trajectory for EU Climate Transition Benchmarks. 3. Benchmark administrators which provide an EU Climate Transition Benchmark or an EU Paris-aligned Benchmark shall comply with this Regulation by 30 April 2020.4. Administrators that are not included in the register referred to in Article 36 shall not: (a) provide or endorse EU Climate Transition Benchmarks or EU Paris-aligned Benchmarks; (b) indicate or suggest, in the name of the benchmarks they make available for use in the Union or in the legal or marketing documentation for those benchmarks, that the benchmarks they make available comply with the requirements applicable to the provision of EU Climate Transition Benchmarks or EU Paris-aligned Benchmarks. 5. Administrators shall include the acronym CTB in the name of the EU Climate Transition Benchmarks and the acronym PAB in the name of the EU Paris-aligned Benchmarks.

texts differ too much for an inline diff; shown separately

before (02016R1011-20250117)

Article 24
Significant benchmarks
1. A benchmark which does not fulfil any of the conditions laid down in Article 20(1) is significant when:
(a) it is used directly or indirectly within a combination of benchmarks as a reference for financial instruments or financial contracts or for measuring the performance of investments funds having a total average value of at least EUR 50 billion on the basis of all the range of maturities or tenors of the benchmark, where applicable, over a period of six months; or
(b) it has no or very few appropriate market-led substitutes and, in the event that the benchmark ceases to be provided or is provided on the basis of input data no longer fully representative of the underlying market or economic reality or unreliable input data, there would be a significant and adverse impact on market integrity, financial stability, consumers, the real economy or the financing of households or businesses in one or more Member States.
2. The Commission shall be empowered to adopt delegated acts in accordance with Article 49 in order to review the calculation method used to determine the threshold referred to in point (a) of paragraph 1 of this Article in the light of market, price and regulatory developments as well as the appropriateness of the classification of benchmarks with a total value of financial instruments, financial contracts or investment funds referencing them that is close to that threshold. Such review shall take place at least every two years as from 1 January 2018.
3. An administrator shall immediately notify its competent authority when its significant benchmark falls below the threshold mentioned in point (a) of paragraph 1.

after (02016R1011-20260101)

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.

inserted text (02016R1011-20260101)

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.

02016R1011-20250117 → 02016R1011-20260101

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 … 578 unchanged words … 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.

02016R1011-20250117 → 02016R1011-20260101

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 … 408 unchanged words … 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. By 30 April 2020, for each of the requirements referred to in paragraph 2, the benchmark statement shall contain an explanation of how ESG factors are reflected in each benchmark or family of benchmarks provided and published. For those benchmarks or families of benchmarks that do not pursue ESG objectives, it shall be sufficient for benchmark administrators to clearly state in the benchmark statement that they do not pursue such objectives. Where no EU Climate Transition Benchmark or EU Paris-aligned Benchmark is available in the portfolio of that individual benchmark administrator, or the individual benchmark administrator has no benchmarks that pursue ESG objectives or take into account ESG factors, this shall be stated in the benchmark statements of all benchmarks provided by that administrator. 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 or not whether, and to what extent 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 CouncilRegulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability-related disclosures in the financial services sector (OJ L 317, 9.12.2019, p. 1).. By 31 December 2021, 1, ELI: http://data.europa.eu/eli/reg/2019/2088/oj).. 2aa. Where a benchmark administrators shall, for each benchmark or, where applicable, each or family of benchmarks, with benchmarks includes in its legal or marketing documentation any reference to the exception consideration of interest rate ESG factors, the administrator shall publish, by means that ensure fair and foreign exchange benchmarks, include in their benchmark statement easy access, an explanation of how their methodology aligns with the target of carbon emission reductions or attains the objectives ESG factors are reflected for each of the Paris Agreement. 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 in the benchmark statement pursuant to paragraph 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 that paragraph. 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.

02016R1011-20250117 → 02016R1011-20260101

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 their contractual relationship with clients. fallback provisions applicable to financial contracts, financial instruments and investment funds.

texts differ too much for an inline diff; shown separately

before (02016R1011-20250117)

Article 29
Use of a benchmark
1. A supervised entity may use a benchmark or a combination of benchmarks in the Union if the benchmark is provided by an administrator located in the Union and included in the register referred to in Article 36 or is a benchmark which is included in the register referred to in Article 36.
1a. A supervised entity may also use the replacement for a benchmark designated in accordance with Article 23b or Article 23c.
2. Where the object of a prospectus to be published under Directive 2003/71/EC or Directive 2009/65/EC is transferable securities or other investment products that reference a 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.

after (02016R1011-20260101)

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 CouncilRegulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC (OJ L 168, 30.6.2017, p. 12, ELI: http://data.europa.eu/eli/reg/2017/1129/oj). 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.

02016R1011-20250117 → 02016R1011-20260101

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 intending that intends to obtain prior recognition as referred to in paragraph 1 of this Article shall comply with the requirements established in this Regulation, excluding 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 the requirements established in this Regulation, excluding with the exception of Article 11(4), 11(4) and Articles 16, 20, 21 and 23. To determine When determining whether the condition referred to in the first subparagraph is fulfilled and to assess assessing the compliance with the IOSCO principles for financial benchmarks or the IOSCO principles for PRAs, as applicable, ESMA may take into account account: (a) an assessment of the administrator by an independent external auditor or, auditor; (b) a certification provided by the competent authority of the administrator in the third country where the administrator is located. If, 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 benchmark, or a commodity benchmark that is not based on submissions by contributors the majority of which are supervised entities, there shall be no obligation on 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 as provided for in Article 17 and Article 19(1) respectively. subject to Annex II. 3. An administrator located in a third country intending to obtain prior recognition as referred to in paragraph 1 shall have a legal representative. The legal representative shall be a natural or legal person located in the Union and expressly appointed by that administrator to act on 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, in that respect, 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 … 387 unchanged words … 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 prior recognition as referred to in paragraph 1 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 referred to laid down in paragraph 2 and shall provide the list with respect to any of its actual benchmarks that are significant pursuant to Article 24, that are EU Paris-aligned benchmarks or prospective EU Climate Transition benchmarks, or that are commodity benchmarks which are intended for use in subject to Annex II. Where applicable, the Union and shall, where applicable, 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 application referred to in the first subparagraph of this paragraph, 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 … 582 unchanged words … 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.

02016R1011-20250117 → 02016R1011-20260101

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, or any other supervised entity located in the Union with a clear and well-defined role within under the control or accountability framework of an administrator located in a third country administrator, country, which is able to monitor effectively the provision of a benchmark, may apply to the relevant competent authority 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 or other supervised entity that makes submits an application for endorsement as referred to in paragraph 1 shall provide all information necessary to satisfy the competent authority 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, the relevant competent authority ESMA shall examine the application and adopt a decision either to authorise the endorsement or to refuse it. An endorsed benchmark Where ESMA authorises the endorsement, the competences in relation to the authorisation or an endorsed family registration, as applicable, of benchmarks the administrator that applied for endorsement shall be notified by transferred to ESMA within 6 months of the competent authority to ESMA. 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 or other supervised entity. administrator. The endorsing administrator or other supervised entity shall not use the endorsement with the intention of avoiding the requirements of this Regulation. 5. An administrator or other supervised entity 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 the competent authority of the endorsing administrator or other supervised entity 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 or other supervised entity to cease the endorsement and shall inform ESMA thereof. 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 the relevant competent authorities 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.

02016R1011-20250117 → 02016R1011-20260101

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 if 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 within the meaning of this Regulation; subject to Annex II, as EU Climate Transition Benchmarks or as EU Paris-aligned Benchmarks; (b) registration if 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 benchmarks within the meaning of this Regulation, on condition 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; or (c) registration if it provides or intends to provide only indices which would qualify as non-significant benchmarks. 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) (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 Article 20(1), 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 to in a financial instrument or financial contract or to measure the performance of an investment fund. 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.

02016R1011-20250117 → 02016R1011-20260101

Article 36 Register of administrators and benchmarks 1. ESMA shall establish and maintain a public register that contains the following information: (a) the identities 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 identities, including, where available, the LEI, of administrators that comply with the conditions laid down in Article 30(1), the list of benchmarks benchmarks, including, where available, their International Securities Identification Numbers (ISINs), referred to in Article 30(1), point (c) of Article 30(1) (c), and the third country competent authorities responsible for the supervision thereof; (c) the identities identities, including, where available, the LEI, of the administrators that acquired recognition in accordance with Article 32, the list of benchmarks referred to benchmarks, including, where available, their ISINs, provided by those administrators which may be used in Article 32(7) the Union and, where applicable, the third country competent authorities responsible for the supervision thereof; (d) the benchmarks 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 identities, including, where available, the LEI, of the endorsing administrators administrators; (e) the benchmarks, including, where available, their ISINs, subject to a statement published by ESMA or endorsing supervised entities. 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.

02016R1011-20250117 → 02016R1011-20260101

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. 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.

02016R1011-20250117 → 02016R1011-20260101

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. 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.

02016R1011-20250117 → 02016R1011-20260101

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 500000 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 100000 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 1000000 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 … 381 unchanged words … 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.

02016R1011-20250117 → 02016R1011-20260101

Article 48f Fines 1. Where, in accordance with Article 48i(5), ESMA finds that any person has, intentionally or negligently, committed one or more of the infringements listed in point (a) of Article 42(1), point (a), or any failure to cooperate or comply in an investigation or with an inspection or request covered by Section 1 of this Chapter, it shall adopt a decision imposing a fine in accordance with paragraph 2 of this Article. An infringement shall be considered to have been committed intentionally if ESMA finds objective factors which demonstrate that a person acted deliberately to commit the … 345 unchanged words … act or omission of a person constitutes more than one infringement listed in point (a) of Article 42(1), only the higher fine calculated in accordance with paragraph 2 of this Article and relating to one of those infringements shall apply.

02016R1011-20250117 → 02016R1011-20260101

Article 48i Procedural rules for taking supervisory measures and imposing fines 1. Where, in carrying out its duties under this Regulation, ESMA finds that there are serious indications of the possible existence of facts liable to constitute one or more of the infringements listed in point (a) of Article 42(1), point (a), or of a failure to cooperate or comply in an investigation or with an inspection or request covered by Section 1 of Chapter 4, ESMA shall appoint an independent investigation officer within ESMA to investigate the matter. The appointed officer shall not be involved or have been directly or indirectly involved in the supervision of the benchmarks to which the infringement relates and shall perform his or her functions independently from ESMA’s Board of Supervisors. 2. The investigation officer referred to in paragraph 1 shall investigate the alleged infringements, take into account any comments submitted by the persons who are subject to the investigation, and shall submit a complete file with his or her findings to ESMA’s Board of Supervisors. 3. In order to carry out his or her tasks, the investigation officer shall have the power to request information in accordance with Article 48b and to conduct investigations and on-site inspections in accordance with Articles 48c and 48d. 4. Where carrying out those tasks, the investigation officer shall have access to all documents and information that have been gathered by ESMA in its supervisory activities. 5. Upon completion of his or her investigation and before submitting the file with his or her findings to ESMA’s Board of Supervisors, the investigation officer shall give the persons subject to the investigation the opportunity to be heard on the matters being investigated. The investigation officer shall base his or her findings only on facts on which the persons concerned have had the opportunity to comment. 6. The rights of the defence of the persons subject to the investigation shall be fully respected during investigations under this Article. 7. Upon submission of the file with his or her findings to ESMA’s Board of Supervisors, the investigation officer shall notify the persons who are subject to the investigation. The persons subject to the investigation shall be entitled to have access to the file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information affecting third parties. 8. On the basis of the file containing the investigation officer’s findings and, when requested by the persons concerned, after having heard those persons in accordance with Article 48j, ESMA shall decide if one or more of the infringements listed in Article 42(1), point (a) (a), or a failure to cooperate or comply in an investigation or with an inspection or request covered by Section 1 of Article 42(1) Chapter 4, has been committed by the persons subject to the investigation and, in such case, shall take a supervisory measure in accordance with Article 48e and impose a fine in accordance with Article 48f. 48f, as applicable. 9. The investigation officer shall not participate in the deliberations of ESMA’s Board of Supervisors or in any other way intervene in the decision-making process of ESMA’s Board of Supervisors. 10. By 1 October 2021, the Commission shall adopt delegated acts in accordance with Article 49 to specify the rules of procedure for the exercise of the power to impose fines or periodic penalty payments, including provisions on rights of defence, temporal provisions, and the collection of fines or periodic penalty payments, and the limitation periods for the imposition and enforcement of fines and periodic penalty payments. 11. ESMA shall refer matters for criminal prosecution to the relevant national authorities where, in carrying out its tasks under this Regulation, it finds that there are serious indications of the possible existence of facts liable to constitute criminal offences. In addition, ESMA shall refrain from imposing fines or periodic penalty payments where a prior acquittal or conviction arising from an identical fact or facts which are substantially the same has already acquired the force of res judicata as the result of criminal proceedings under national law.

02016R1011-20250117 → 02016R1011-20260101

Article 48n Transition measures related to ESMA 1. All competences and duties related to the supervisory and enforcement activity regarding administrators as referred to in Article 40(1) 40(1), points (a) and (b), that are conferred on competent authorities as referred to in Article 40(2) shall be terminated on 1 January 2022. Those competences and duties shall be taken-up taken up by ESMA on the same date. 1a. All competences and duties related to the supervisory and enforcement activity regarding administrators endorsing benchmarks provided in a third country as referred to in Article 40(1), point (c), that are conferred on competent authorities as referred to in Article 40(2) shall be terminated on 1 January 2026. Those competences and duties shall be taken up by ESMA on the same date. 2. Any files and working documents related to the supervisory and enforcement activity regarding administrators as referred to in Article 40(1), points (a) and (b), including any ongoing examinations and enforcement actions, or certified copies thereof, shall be taken over by ESMA on the date referred to in paragraph 1 of this Article. However, applications for authorisation by administrators of a critical benchmark referred to in Article 20(1), points (a) and (c) of Article 20(1) (c), and applications for recognition in accordance with Article 32 that have been received by competent authorities before 1 October 2021 shall not be transferred to ESMA, and the decision to authorise or recognise shall be taken by the relevant competent authority. 2a. Any files and working documents related to the supervisory and enforcement activity regarding administrators endorsing benchmarks provided in a third country as referred to in Article 40(1), point (c), including any ongoing examinations and enforcement actions, or certified copies thereof, shall be taken over by ESMA on the date referred to in paragraph 1a of this Article. However, applications for endorsement that have been received by competent authorities before 1 October 2025 shall not be transferred to ESMA, and the decision to authorise or endorse shall be taken by the relevant competent authority. 3. Competent authorities shall ensure that any existing records and working papers, or certified copies thereof, thereof regarding administrators as referred to in Article 40(1), points (a) and (b), shall be transferred to ESMA as soon as possible and in any event by 1 January 2022. Those competent authorities shall also render all necessary assistance and advice to ESMA to facilitate effective and efficient transfer and taking-up of supervisory and enforcement activity regarding administrators as referred to in Article 40(1). 40(1), points (a) and (b). 3a. Competent authorities shall ensure that any existing records and working papers, or certified copies thereof regarding administrators as referred to in Article 40(1), point (c), shall be transferred to ESMA as soon as possible and in any event by 1 January 2026. Those competent authorities shall also render all necessary assistance and advice to ESMA to facilitate effective and efficient transfer and taking-up of supervisory and enforcement activity regarding administrators as referred to in Article 40(1), point (c). 4. ESMA shall act as the legal successor to the competent authorities referred to in paragraph paragraphs 1 and 1a in any administrative or judicial proceedings that result from supervisory and enforcement activity pursued by those competent authorities in relation to matters that fall within the scope of this Regulation. 5. Any authorisation of administrators of a critical benchmark as referred to in Article 20(1), points (a) and (c) of Article 20(1) and (c), recognition in accordance with Article 32 and any authorisation or registration of an administrator endorsing or envisaging to endorse benchmarks provided in a third country granted by a competent authority referred to in paragraph 1 of this Article shall remain valid after the transfer of competences to ESMA.

02016R1011-20250117 → 02016R1011-20260101

Article 49 Exercise of the delegation 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(2), 24(9), 27(2b), 33(7), 51(6) and 54(3) shall be conferred on the Commission for a period of five years from 10 December 2019. 30 June 2024. The Commission shall draw up a report in respect of the delegation of power no later than 11 March 2024. 31 December 2029. The delegation of power shall be tacitly extended for further periods of identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period. 2a. The power to adopt delegated acts referred to in Articles 30(2a), 30(3a), 48i(10) and 48l(3) shall be conferred on the Commission for an indeterminate period of time from 30 December 2019. 2b. The power to adopt delegated acts referred to in Articles 18a(3) and Article 54(7) shall be conferred on the Commission for an indeterminate period of time from 13 February 2021. 3. The delegation of power referred to in Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(2), 24(9), 27(2b), 30(2a), 30(3a), 33(7), 48i(10), 48l(3), 51(6) and 54(3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or on a later date specified therein. It shall not affect the validity of any delegated acts already in force. 3a. The delegation of power referred to in Articles 18a(3) and Article 54(7) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or on a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. 5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 6. A delegated act adopted pursuant to Article 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(2), 24(9), 27(2b), 30(2a), 30(3a), 33(7), 48i(10), 48l(3), 51(6) or 54(3) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council. 6a. A delegated act adopted pursuant to Article 18a(3) or 54(7) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.

02016R1011-20250117 → 02016R1011-20260101

Article 51 Transitional provisions 1. An index provider providing a benchmark on 30 June 2016 shall apply for authorisation or registration in accordance with Article 34 by 1 January 2020. 2. By 1 January 2020, the competent authority of the Member State where … 414 unchanged words … new financial instruments, financial contracts, or for measuring the performance of an investment fund until 31 December 2021 or, where the index provider submits an application for authorisation in accordance with paragraph 1, unless and until such authorisation is refused. 4c. Where competent authorities or ESMA intend to designate as significant a benchmark provided by an administrator that was included in the register referred to in Article 36 on 31 December 2025 or where ESMA intends to designate as significant a benchmark that was included in the register referred to in Article 36 on 31 December 2025, the competent authorities or ESMA, as applicable, shall do so by 30 September 2026. Administrators of benchmarks that on 31 December 2025 were included in the register referred to in Article 36 as authorised, registered or recognised, or as endorsing administrators, shall retain that status until 30 September 2026 and: (a) where one or more of their benchmarks are significant pursuant to Article 24(1), point (a), those administrators shall not be obliged to re-apply for authorisation, registration, recognition or endorsement pursuant to Article 24a(1); (b) where one or more of their benchmarks are an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark, or a commodity benchmark subject to Annex II, those administrators shall not be obliged to re-apply for authorisation, registration, recognition or endorsement pursuant to Article 34; (c) where one or more of their benchmarks are designated as significant pursuant to Article 24(3) or (6) on or before 30 September 2026, those administrators shall not be obliged to re-apply for authorisation, registration, recognition or endorsement pursuant to Article 24a(2) or (3), as applicable; (d) where none of their benchmarks is significant pursuant to Article 24 as at 30 September 2026, an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark, or a commodity benchmark subject to Annex II, and those administrators request designation of one or more of their benchmarks as significant pursuant to Article 24(7) by 1 January 2027, those administrators shall not be obliged to re-apply for authorisation or registration where that request leads to a designation. A spot foreign exchange benchmark provided by an administrator located in a third country may be used for existing and new financial instruments and financial contracts, or for measuring the performance of an investment fund until the date of entry into force of the implementing act referred to in Article 18a(3). 5. Unless the Commission has adopted an equivalence decision as referred to in paragraph (2) or (3) of Article 30, an administrator has been recognised pursuant to Article 32 or a benchmark has been endorsed pursuant to Article 33, the use in the Union by supervised entities of a third-country benchmark shall be permitted only for financial instruments, financial contracts and measurements of the performance of an investment fund that already reference that benchmark or which add a reference to such benchmark before 31 December 2023. The first subparagraph shall not apply to benchmarks provided by administrators who relocate from the Union to a third country during the transitional period. The competent authority shall notify ESMA in accordance with Article 35. ESMA shall draw up a list of third-country benchmarks to which the first subparagraph does not apply. Where ESMA has received, by 31 December 2025, an application for recognition pursuant to Article 32(5) from an administrator located in a third country providing an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark or a commodity benchmark subject to Annex II, or an application for endorsement pursuant to Article 33(1) for an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark or a commodity benchmark subject to Annex II provided by an administrator located in a third country, the benchmark concerned may be used for existing and new financial instruments and financial contracts, unless and until its administrator’s recognition or its endorsement is refused by ESMA. 6. The Commission shall be empowered to adopt delegated acts in accordance with Article 49 concerning measures to determine the conditions on which the relevant competent authority may assess whether the cessation or the changing of an existing benchmark to conform with the requirements of this Regulation could reasonably result in a force majeure event, frustrate or otherwise breach the terms of any financial contract or financial instrument or the rules of any investment fund which references such benchmark.

No text on either side: this unit was named by a signal that carries no text, and only the structural diff carries any.

02016R1011-20250117 → 02016R1011-20260101

Article 54 Review 1. By 1 January 2020, the Commission shall review and submit a report to the European Parliament and to the Council on this Regulation and in particular on: (a) the functioning and effectiveness of the critical benchmark, mandatory administration and … 444 unchanged words … latest if the report referred to in paragraph 6 of this Article demonstrates that, otherwise, the continued use in the Union of certain third-country benchmarks by supervised entities would be significantly impaired or would pose a threat to financial stability.8. By 30 June 2029, the Commission shall, after consulting ESMA, present a report to the European Parliament and to the Council assessing whether the scope of this Regulation with respect to benchmarks with ESG-related claims, and in particular ESG disclosures by administrators of those benchmarks, is appropriate. In that assessment, the Commission shall take into account the availability in the Union of benchmarks with ESG-related claims and their uptake considering, where possible, the cost of those benchmarks and the evolving nature of ESG indicators and methods used to measure them. The report shall also include an assessment as to whether the content of the disclosures to be made under this Regulation is consistent with sustainability-related disclosures under Regulation (EU) 2019/2088 and with relevant ESMA guidelines. That report shall, where appropriate, be accompanied by a legislative proposal.

No text on either side: this unit was named by a signal that carries no text, and only the structural diff carries any.