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

[F1 Article 23FB U.K. References to Article 23A benchmarks: further provision

1. Article 23FA(1) and (2) do not apply to the extent that the contract or arrangement provides expressly that those paragraphs do not apply.

2. Article 23FA(1) does not apply to a reference to a benchmark to which it would otherwise apply (taking account of Article 23FA(2), where relevant) to the extent that the contract or arrangement provides expressly that the reference does not include the benchmark as it exists at the times described in Article 23FA(1).

3. Article 23FA(1) to (5) do not prevent or otherwise affect the operation of fallback provision, either before or after the benchmark in question became an Article 23A benchmark, subject to paragraph 5 and any regulations made under paragraph 6.

4. “Fallback provision” means express provision for the contract or arrangement—

(a) to operate, or to be varied so as to operate, by reference to something other than the benchmark in question (temporarily or permanently), or

(b) to terminate,

either on a particular date or in particular circumstances (such as, among other things, circumstances relating to the benchmark’s representativeness, its designation under Article 23A or the way in which it is determined).

5. To the extent that fallback provision provides that it is triggered when the benchmark in question ceases to exist or to be published or otherwise made available (temporarily or permanently), Article 23FA(1) to (5) prevent it from being triggered by reason of the benchmark’s designation under Article 23A or the exercise of a power, discretion or permission under Article 23D.

6. The Treasury may by regulations provide—

(a) that Article 23FA(1) and (2) do not apply—

(i) to a specified benchmark or to benchmarks of a specified description;

(ii) to contracts or other arrangements of a specified description;

(b) that references in this Article to “fallback provision” include (in addition to the provision described in paragraph 4) express provision of a specified description;

(c) that fallback provision is not triggered in cases of a specified description relating to a benchmark’s designation under Article 23A (in addition to the cases described in paragraph 5).

In this paragraph “specified” means specified in the regulations.

7. Regulations under paragraph 6 may make provision that applies generally or only for specific purposes (for example, provision that only applies in relation to a particular benchmark, a particular description of contracts or other arrangements or a particular type of fallback provision).]

Textual Amendments

F1 Arts. 23FA, 23FB inserted (15.12.2021) by Critical Benchmarks (References and Administrators' Liability) Act 2021 (c. 33), ss. 1, 4(3)