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Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (Text with EEA relevance)
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Regulation (EU) 2016/1011 of the European Parliament and of the Council, Article 21 is up to date with all changes known to be in force on or before 29 August 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
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1.If an administrator of a critical benchmark intends to cease providing such benchmark, the administrator shall:
(a)immediately notify [F1the FCA]; and
(b)within four weeks of such notification submit an assessment of how the benchmark:
is to be transitioned to a new administrator; or
is to be ceased to be provided, taking into account the procedure established in Article 28(1).
During the period referred to in point (b) of the first subparagraph, the administrator shall not cease provision of the benchmark.
2.Upon receipt of the assessment of the administrator referred to in paragraph 1, [F2the FCA] shall:
F3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)within four weeks, make its own assessment of how the benchmark is to be transitioned to a new administrator or be ceased to be provided, taking into account the procedure established in accordance with Article 28(1).
During the period of time referred to in point (b) of the first subparagraph of this paragraph, the administrator shall not cease the provision of the benchmark without the written consent of [F4the FCA].
3.Following completion of the assessment referred to in point (b) of paragraph 2, [F5the FCA] shall have the power to compel the administrator to continue publishing the benchmark until such time as:
(a)the provision of the benchmark has been transitioned to a new administrator;
(b)the benchmark can be ceased to be provided in an orderly fashion [F6(whether by the exercise of the FCA's powers under Article 23D or otherwise)]; or
(c)the benchmark is no longer critical.
For the purposes of the first subparagraph, the period for which [F5the FCA] may compel the administrator to continue to publish the benchmark shall not exceed 12 months.
[F7By the end of that period, [F5the FCA] shall review its decision to compel the administrator to continue to publish the benchmark. [F5The FCA] may, where necessary, extend that period by an appropriate period not exceeding 12 months. The maximum period of mandatory administration shall not exceed [F810 years].]
[F93A.If the FCA decides to compel the administrator to continue publishing the benchmark under paragraph 3, the FCA must assess the capability of the benchmark to measure the underlying market or economic reality, taking into account, among other things, the procedure established by the administrator in accordance with Article 28(1).
3B.After making its assessment under paragraph 3A, the FCA must give the administrator—
(a)a written notice stating that it considers that the benchmark is not representative of the market or economic reality that it is intended to measure or that the representativeness of the benchmark is at risk, or
(b)a written notice stating that it considers that the representativeness of the benchmark is not at risk.
3C.The FCA must make its assessment under paragraph 3A, and give the notice under paragraph 3B, before the end of the period of 28 days beginning with the day on which the FCA notifies the administrator of its decision to compel the administrator to continue publishing the benchmark.]
4.Without prejudice to paragraph 1, in the event that the administrator of a critical benchmark is to be wound down due to insolvency proceedings, [F10the FCA] shall make an assessment of whether and how the critical benchmark can be transitioned to a new administrator or can cease to be provided in an orderly fashion, taking into account the procedure established in accordance with Article 28(1).
Textual Amendments
F1Words in Art. 21(1)(a) substituted (31.12.2020) by The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/657), regs. 1(2), 17(2) (with regs. 51-53, 65) (as amended by S.I. 2019/1212, regs. 1(3), 20(3)(4) and with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
F2Words in Art. 21(2) substituted (31.12.2020) by The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/657), regs. 1(2), 17(3)(a)(i) (with regs. 51-53, 65) (as amended by S.I. 2019/1212, regs. 1(3), 20(3)(4) and with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
F3Art. 21(2)(a) omitted (31.12.2020) by virtue of The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/657), regs. 1(2), 17(3)(a)(ii) (with regs. 51-53, 65) (as amended by S.I. 2019/1212, regs. 1(3), 20(3)(4) and with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
F4Words in Art. 21(2) substituted (31.12.2020) by The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/657), regs. 1(2), 17(3)(b) (with regs. 51-53, 65) (as amended by S.I. 2019/1212, regs. 1(3), 20(3)(4) and with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
F5Words in Art. 21(3) substituted (31.12.2020) by The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/657), regs. 1(2), 17(4) (with regs. 51-53, 65) (as amended by S.I. 2019/1212, regs. 1(3), 20(3)(4) and with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
F6Words in Art. 21(3)(b) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 5 para. 7; S.I. 2021/739, reg. 3(n)
F7Substituted by Regulation (EU) 2019/2089 of the European Parliament and of the Council of 27 November 2019 amending Regulation (EU) 2016/1011 as regards EU Climate Transition Benchmarks, EU Paris-aligned Benchmarks and sustainability-related disclosures for benchmarks (Text with EEA relevance).
F8Words in Art. 21(3) substituted (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 9(2), 49(5); S.I. 2021/739, reg. 3(b)
F9Art. 21(3A)-(3C) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 9(3), 49(5); S.I. 2021/739, reg. 3(b)
F10Words in Art. 21(4) substituted (31.12.2020) by The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/657), regs. 1(2), 17(4) (with regs. 51-53, 65) (as amended by S.I. 2019/1212, regs. 1(3), 20(3)(4) and with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
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