Regulation (EU) 2016/1011 of the European Parliament and of the CouncilShow full title

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)

CHAPTER 3U.K.Role of competent authorities

F1Article 40U.K.Competent authorities

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Article 41U.K.Powers of competent authorities

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4.An administrator or any other supervised entity making information available [F3at the request of the FCA or in response to a requirement imposed by the FCA in the exercise of its functions under Regulation (EU) 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC] shall not be considered to be in breach of any restriction on disclosure of information posed by any contractual, legislative, regulatory or administrative provision.

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F4Article 42U.K.Administrative sanctions and other administrative measures

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F4Article 43U.K.Exercise of supervisory powers and imposition of sanctions

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F4Article 44U.K.Obligation to cooperate

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Article 45U.K.Publication of decisions

1.Subject to paragraph 2, [F5the FCA] shall publish any decision imposing an administrative sanction or other administrative measure in relation to infringements of this Regulation on its official website immediately after the person subject to that decision has been informed of that decision. Such publication shall include at least information on the type and nature of the infringement and the identity of the persons subject to the decision.

The first subparagraph does not apply to decisions imposing measures that are of an investigatory nature.

2.Where [F6the FCA] considers that the publication of the identity of the legal person or of the personal data of a natural person, would be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data, or where such publication would jeopardise the stability of financial markets or an on-going investigation, it shall do any of the following:

(a)defer publication of the decision until such time as the reasons for that deferral cease to exist;

(b)publish the decision on an anonymous basis in accordance with national law where such anonymous publication ensures an effective protection of the personal data concerned;

(c)not publish the decision at all in the event that [F7the FCA] is of the opinion that publication in accordance with point (a) or (b) will be insufficient to ensure:

(i)that the stability of financial markets is not jeopardised; or

(ii)the proportionality of the publication of such decisions with regard to measures which are deemed to be of a minor nature.

Where [F6the FCA] decides to publish a decision on an anonymous basis as referred to in point (b) of the first subparagraph, it may postpone the publication of the relevant data for a reasonable period of time where it is foreseeable that the reasons for anonymous publication shall cease to exist during that period.

3.Where the decision is subject to an appeal before a national judicial, administrative or other authority, [F8the FCA] shall also publish, immediately, on its official website such information and any subsequent information on the outcome of such appeal. Any decision annulling a previous decision to impose a sanction or a measure shall also be published.

4.The [F9FCA] shall ensure that any decision that is published in accordance with this Article shall remain accessible on its official website for a period of at least five years after its publication. Personal data contained in the publication shall only be kept on the official website of the [F9FCA] for the period which is necessary in accordance with the applicable data protection rules.

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Article 46U.K.[F11Cessation of a critical benchmark in certain circumstances]

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With regard to the decision to withdraw the authorisation or registration of an administrator in accordance with Article 35, whenever the cessation of a [F14critical] benchmark would result in a force majeure event, frustrate or otherwise breach the terms of any financial contract or financial instrument, or the rules of any investment fund, which references that benchmark in the [F15United Kingdom, within the meaning specified in Commission Delegated Regulation (EU) 2018/67 or regulations made by the Treasury under Article 51(6), the FCA] shall consider whether to adopt measures to mitigate the effects referred to in this paragraph, including:

(a)a change to the code of conduct referred to in Article 15, the methodology or other rules of the benchmark;

(b)a transitional period, during which the procedures envisaged under Article 28(2) shall apply.

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F17Article 47U.K.Cooperation with ESMA

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Article 48U.K.Professional secrecy

1.Any confidential information received, exchanged or transmitted pursuant to this Regulation shall be subject to the conditions of professional secrecy laid down in paragraph 2.

2.The obligation of professional secrecy applies to all persons who work or who have worked for the [F18FCA] or for any authority or market undertaking or natural or legal person to whom the [F18FCA] has delegated its powers, including auditors and experts contracted by the [F18FCA].

3.Information covered by professional secrecy may not be disclosed to any other person or authority except by virtue of provisions laid down by [F19the law of the United Kingdom or any part of the United Kingdom].

4.All information [F20exchanged between the FCA and competent authorities] that concerns business or operational conditions and other economic or personal affairs shall be considered confidential and shall be subject to the requirements of professional secrecy, except where the [F21authority from whom the information is received] states at the time of communication that such information may be disclosed or where such disclosure is necessary for legal proceedings.

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