Artikelen bij COM(2023)660 - Wijziging van Verordening (EU) 2016/1011 wat betreft het toepassingsgebied van de voorschriften voor benchmarks, het gebruik in de Unie van benchmarks aangeboden door een in derde land gevestigde beheerder, en bepaalde verslaggevingsverplichtingen

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dossier COM(2023)660 - Wijziging van Verordening (EU) 2016/1011 wat betreft het toepassingsgebied van de voorschriften voor benchmarks, het gebruik ...
document COM(2023)660 EN
datum 17 oktober 2023

Inhoudsopgave

Article 1 - Amendments to Regulation (EU) 2016/1011

Regulation (EU) 2016/1011 is amended as follows:

(1)Article 2 is amended as follows:

(a)the following paragraph 1a is inserted:

‘1a.    Titles II, III, IV and VI .apply only in respect of critical benchmarks, significant benchmarks, EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks.’;

(b)in paragraph 2, points (g) and (i) are deleted;

(2)in Article 3, paragraph 1 is amended as follows:

(a)point (22a) is deleted;

(b)point (27) is deleted;

(3)Article 5 is amended as follows:

(a)in paragraph 5, second subparagraph, the last sentence is deleted ;

(b)paragraph 6 is deleted;

(4)Article 11 is amended as follows:

(a)in paragraph 5, first subparagraph, the last sentence is deleted;

(b)paragraph 6 is deleted;

(5)Article 13 is amended as follows:

(a)in paragraph 3, first subparagraph, the last sentence is deleted;

(b)paragraph 4 is deleted;

(6)Article 16 is amended as follows:

(a)in paragraph 5, second subparagraph, the last sentence is deleted;

(b)paragraph 6 is deleted;

(7)in Title III, the title of Chapter 2 is replaced by the following:

‘Interest rate benchmarks’;

(8)Article 18a is deleted;

(9)in Article 19a, the following paragraph 4 is added:

‘4.    Administrators that are not authorised or registered pursuant to Article 34 shall not :

(a) provide EU Climate Transition Benchmarks or Paris-aligned Benchmarks;

(b) indicate or suggest, in the name of the benchmarks they make available for the 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.’;

(10)Article 19d is deleted;

(11)Article 24 is replaced by the following:

‘Article 24

Significant benchmarks

1. A benchmark which is not a critical benchmark shall be significant where either of the following conditions is met:

(a) 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 investments funds, that have 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;

(b) the benchmark has been designated as significant in accordance with the procedure laid down in paragraphs 3, 4 and 5 or the procedure laid down in paragraph 6.

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, where one or several of that administrator’s benchmarks exceed the threshold referred to in paragraph 1, point (a). Following receipt of that notification, the competent authority or ESMA, as appropriate, shall publish a statement on its website stating that that benchmark is significant.

An administrator shall, upon request, provide the competent authority of the Member State where it is located or, if located in a third country, ESMA, with information as regards whether the threshold referred to in paragraph 1, point (a) has been effectively exceeded.

Where a competent authority or, in the case of a third-country administrator, ESMA, has clear and demonstrable grounds to consider that a benchmark exceeds the threshold referred to in paragraph 1, point (a), the competent authority or ESMA may issue a notice stating that fact. Such a notice shall trigger the same obligations for the benchmark administrator as a notification as referred to in paragraph 2. At least 10 working days before issuing such notice, the competent authority or ESMA shall inform the administrator of the benchmark concerned of its findings, and invite that administrator to submit any observation.

3. A competent authority may, having consulted ESMA in accordance with paragraph 4 and taking into account its advice, designate a benchmark provided by an administrator located in the Union that does not meet the condition laid down in paragraph 1, point (a), as significant where that benchmark fulfils all of 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 no longer fully representative of the underlying market or economic reality or on the basis of unreliable input data, there would be significant and adverse impacts on market integrity, financial stability, consumers, the real economy, or the financing of households and businesses in its Member State;

(c) the benchmark has not been designated by a competent authority of another Member State.

Where a competent authority concludes that a benchmark fulfils the criteria 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 to the competent authority of the administrator’s home Member State where relevant. The competent authority concerned shall also consult ESMA on the draft decision.

The administrators concerned and the competent authority of the administrator’s home Member State shall have 15 working days from the date of notification of the draft decision of the designating competent authority concerned to provide observations and comments in writing. The designating competent authority concerned 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 decision, and publish the decision, including the reasons for which it was made and the consequences of this designation, on its website without undue delay.’;

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, issue an advice that takes 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 met;

(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 in Member States other than the Member State of the consulting competent authority.

For the purposes of point (b), ESMA shall take due account, where relevant, of the information provided by the consulting authority pursuant to the third subparagraph of paragraph 3.

5. Where ESMA finds that a benchmark meets the conditions under paragraph 3, 1st paragraph, points (a) to (c), in more than one Member State, it shall inform the competent authorities of the Member States concerned thereof. They shall agree which among them designates the benchmark concerned as significant benchmark.

Where competent authorities disagree on the matter referred to in the first subparagraph, they shall refer the matter to ESMA, ESMA 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, designate a benchmark provided by an administrator located in a third country that does not meet the threshold laid down in paragraph 1, point (a), as significant where that benchmark fulfils all of the following conditions:

(a) the benchmark has no, or very few, appropriate market-led substitutes;

(b) in the event that the benchmark would cease to be provided, or would be 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 jurisdiction where the administrator is located to provide any relevant information for the purposes of the assessment related to the designation of the benchmark.

ESMA shall motivate any designation decision, taking into account whether there is sufficient evidence that the conditions referred to in the first subparagraph of this paragraph are met, 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 or authorities without undue delay.

7. The Commission shall be empowered to adopt delegated acts in accordance with Article 49 to further specify the calculation method to be used to determine the threshold referred to in paragraph 1, point (a) of this Article in the light of market, price and regulatory developments. 


(12)the following Article 24a is inserted:

‘Article 24a

Requirements for administrators of significant benchmarks

(1)Within 60 working days following the notification referred to in Article 24(2), the administrator of a benchmark satisfying the criterion referred to in paragraph (1), point (a), of that Article, 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 concerned is covered by an equivalence decision adopted pursuant to Article 30, that administrator shall, within 60 working days following 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.

(2)Within 60 working days following a designation referred to in Article 24(3), the administrator of the benchmark concerned, unless that administrator is already authorised or registered, shall seek authorisation or registration with the designating competent authority in accordance with Article 34.

(3)Withing 60 working days following a designation referred to in Article 24(6), the administrator of the benchmark concerned, unless the benchmark concerned 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.

(4)ESMA or competent authorities shall make use of the supervisory and sanction powers they are entrusted with under this Regulation to ensure that the relevant administrators comply with their obligations.

(5)The competent authority or ESMA shall issue a public notice stating that a significant benchmark provided by an administrator does not comply with this Regulation and that users should refrain from using that benchmark where any of the following conditions is met: 

(a)within 60 working days following the notification referred to in Article 24(2) the designation referred to in Article 24(3) or the designation referred to in Article 24(6), the administrator concerned has not initiated procedures to comply with paragraph 2 of this Article;

(b)the authorisation, registration, recognition or endorsement procedures have failed;

(c)ESMA has withdrawn the registration of the administrator in accordance with Article 31;

(d)ESMA has withdrawn or suspended the recognition of the administrator concerned in accordance with Article 34(6);

(e)the endorsement of the administrator concerned has ceased;

(f)the competent authority has withdrawn or suspended the authorisation or registration of the administrator concerned.

Competent authorities shall notify ESMA of all issued public notices without undue delay. ESMA shall publish all issued public notices on its website. ESMA or 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.

(13)in Title III, Chapter 6 is deleted;

(14)Article 29 is amended as follows:

(a)the title is replaced by the following:

‘Use of significant benchmarks, EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks’;

(b)paragraph 1 is replaced by the following:

   ‘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 ESMA or a competent authority in accordance with Article 24a(5). A supervised entity shall not add new references to an EU Climate Transition Benchmark or an EU Paris-aligned Benchmark or combination of 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 the European Single Access Point (ESAP) as referred to in Article 28a, or the ESMA register as referred to in Article 36, to verify the regulatory status of the administrators of significant benchmarks, EU Climate Transition Benchmarks or EU Paris-Aligned Benchmarks they intend to use.

By way of derogation from the first subparagraph, ESMA or the competent authority, as appropriate, may allow the use of a benchmark subject to a public notice issued in accordance with Article 24a(5) for a period of 6 months following the publication of the public notice, renewable once, where necessary to avoid serious market disruption.’

(c)a new paragraph 1a is inserted:

‘1a. A supervised entity that uses a benchmark in existing financial contracts or financial instruments that is subject to a public notice under Article 24a(5) shall replace that benchmark with an appropriate alternative within 6 months following the publication of that notice, or issue and publish a statement on its website informing clients of the absence of an appropriate alternative.’;

(15)Article 32 is amended as follows:

(a)paragraph 1 is deleted;

(b)paragraphs 2 and 3 are replaced by the following:

‘2.    An administrator located in a third country that intends to obtain recognition as referred to in Article 24a(1) and (3) shall comply with this Regulation, with the exception of Article 11(4) and Articles 16, 20, 21 and 23. The administrator located in a third country may fulfil that condition by applying the IOSCO principles for financial benchmarks or the IOSCO principles for PRAs, as applicable, provided that such application is equivalent to compliance with this Regulation, with the exception of Article 11(4), and Articles 16, 20, 21 and 23.

   When determining whether the condition referred to in the first subparagraph is fulfilled and assessing the compliance with the IOSCO principles for financial benchmarks or the IOSCO principles for PRAs, as applicable, ESMA may take into account:

(a)an assessment of the administrator located in a third country by an independent external auditor;

(b)a certification provided by the competent authority of the third country where that administrator is located.

   Where, and to the extent that, a third country administrator is able to demonstrate that a benchmark it provides is a regulated-data benchmark or a commodity benchmark that is not based on submissions by contributors the majority of which are supervised entities, the administrator shall not be obliged to comply with the requirements which, pursuant to Article 17 and Article 19(1), are not applicable to the provision of regulated-data benchmarks and of commodity benchmarks.

3. An administrator located in a third country intending to obtain recognition 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, be accountable to ESMA.’;

(c)in paragraph 5, the first subparagraph is replaced by the following:

‘An administrator located in a third country intending to obtain recognition as referred to in paragraph 2 shall apply for recognition with ESMA. The applicant administrator shall provide all information necessary to satisfy ESMA that it has established, at the time of recognition, all the necessary arrangements to meet the requirements laid down in paragraph 2 with respect to its benchmark or benchmarks that have been designated in accordance with Article 24. Where applicable, the applicant administrator shall indicate the competent authority in the third country responsible for its supervision.

Within 15 working days of receipt of the application, ESMA shall assess whether the application is complete and shall notify the applicant accordingly. Where the application is incomplete, the applicant shall submit the additional information required by ESMA. The time limit referred to in this subparagraph shall apply from the date on which the applicant has provided such additional information.’;

(16)Article 34 is amended as follows,

(a)paragraph 1 is replaced by the following:

   ‘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 in order to receive:

(a)authorisation where it provides or intends to provide indices which are used or intended to be used as critical benchmarks, as significant benchmarks, as EU Climate Transition Benchmarks or as EU Paris-aligned Benchmarks;

(b)registration where it is a supervised entity, other than an administrator, that provides or intends to provide indices which are used or intended to be used as significant benchmarks, as EU Climate Transition Benchmarks or EU Paris-aligned Benchmarks, provided that the activity of provision of a benchmark is not prevented by the sectoral discipline applying to the supervised entity and that none of the indices provided would qualify as a critical benchmark.’;

(b)paragraph 3 is replaced by the following:

‘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 a financial instrument or financial contract or to measure the performance of an investment fund, or within the time limits set out in Article 24a(2) and (3), as applicable.’;

(17)in Article 36(1), the following points (e) to (j) are added:

‘(e)    the benchmarks subject to a statement published by ESMA or a competent authority pursuant to Article 24(2), and the hyperlinks to such statements;

(f)    the benchmarks subject to designations by competent authorities notified to ESMA pursuant to Article 24(4), and the hyperlinks to such designations;

(g)    the benchmarks subject to designations by ESMA, and the hyperlinks to such designations; 

(h)    the benchmarks subject to public notices issued by ESMA and competent authorities pursuant to Article 24a(5), and the hyperlinks to such public notices.;

(i)    the list of EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks available for use in the Union;

(j)    the list of critical benchmarks.’;

(18)in Article 41(1), the following points (k) and (l) are added:

‘(k)    designate a benchmark as significant pursuant to Article 24(3);

(l)    in case of reasonable grounds to suspect a breach of any of the requirements laid down in Chapter 3A, require that an administrator ceases, for a maximum period of 12 months: 

(i)    to provide EU Climate Transition Benchmarks or EU Paris-aligned Benchmarks; 

(ii)    to refer to EU Climate Transition Benchmarks or EU Paris-aligned Benchmarks in the name of the benchmarks they make available for use in the Union, or in the legal or marketing documentation for those benchmarks;

(iii)    to refer to compliance with the requirements applicable to the provision of such benchmarks in the name of the benchmarks they make available for use in the Union, or in the legal or marketing documentation for those benchmarks;’;

(19)Article 42 is amended as follows: 

(a)in paragraph 1, point (a) is replaced by the following:

‘(a) any infringement of Articles 4 to 16, of Articles 19a, 19b, 19c and 21, of Articles 23 to 29 or of Article 34 where those Articles apply; and’;

(b)paragraph 2 is amended as follows

(i)    in point (g), point (i) is replaced by the following:

‘(i)    for infringements of Articles 4 to 10, of Article 11(1), points (a), (b), (c) and (e), of Article 11(2) and (3), of Articles 12 to 16, of Article 21, of Articles 23 to 29 and of Article 34, EUR 500 000 or in the Member States whose official currency is not the euro, the corresponding value in the national currency on 31 December 2023; or’;

(ii)    in point (h), point (i) is replaced by the following:

‘(i)    for infringements of Articles 4 to 10, of Article 11(1), points (a), (b), (c) and (e), of , Article 11(2) and (3), of Articles 12 to 16, of Article 21, of Articles 23 to 29 and of Article 34, either EUR 1 000 000 or, in the Member States whose official currency is not the euro, the corresponding value in the national currency on 31 December 2023, or 10 % of its total annual turnover according to the last available accounts approved by the management body, whichever is the higher; or’;

(20)Article 49 is amended as follows:

(a)paragraphs 2 and 3 are replaced by the following:

‘2.    The power to adopt delegated acts referred to in Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(7), 27(2b), 33(7), 51(6) and 54(3) shall be conferred on the Commission for a period of five years from 30 June 2024. The Commission shall draw up a report in respect of the delegation of power no later than 31 December 2028. 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.

‘3.    The delegation of power referred to in Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(7), 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.’;

(b)paragraph 6 is replaced by the following:

‘6.    A delegated act adopted pursuant to Article 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(7), 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.’.

(21)in Article 51, the following paragraph 4c is inserted:

‘4c. Competent authorities and ESMA shall ensure that benchmark administrators that were authorised, registered, endorsed or recognised on [PO please insert the date = date of application of this amending Regulation] can benefit from a simplified procedure where they apply for authorisation registration, recognition, or endorsement pursuant to Article 24a(1), (2), or (3), as applicable, by … [PO please insert the date = date of application of this amending Regulation + two years]’;

Article 2 - Entry into force and application

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

It shall apply from 1 January 2026

This Regulation shall be binding in its entirety and directly applicable in all Member States.