Regulation (EU) 2016/1011 of the European Parliament and of the CouncilDangos y teitl llawn

Article 28 U.K. Changes to and cessation of a benchmark

1. An administrator shall publishF1 ... [F2 a robust 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 [F3 United Kingdom] in accordance with Article 29(1). The procedure may be drafted, where applicable, for families of benchmarks F4 ....

[F5 1A. The procedure described in paragraph 1—

(a) must be published with the benchmark statement for the benchmark when that statement is published in accordance with the first or second subparagraph of Article 27(1), and

(b) must be updated and published whenever a material change occurs.

1B. In the case of a critical benchmark—

(a) on the day on which a procedure described in paragraph 1 is published in accordance with paragraph 1A(a), the administrator must give the FCA an assessment of the matters described in paragraph 1C,

(b) the FCA must, before the end of the consideration period, consider whether a procedure published in accordance with paragraph 1A(a) satisfies paragraph 1,

(c) before publishing an update of a procedure described in paragraph 1 (whether in accordance with paragraph 1A(b) or otherwise), an administrator must give the update to the FCA, together with an assessment of the matters described in paragraph 1C,

(d) where the FCA is given an update of a procedure described in paragraph 1 by an administrator, it must, before the end of the consideration period, consider whether the update satisfies paragraph 1, and

(e) an administrator must not publish an update of a procedure described in paragraph 1 unless—

(i) the FCA has given a written notice to the administrator confirming that the update satisfies paragraph 1, or

(ii) the consideration period has expired without the FCA giving a written notice to the administrator stating that the update does not satisfy that paragraph.

1C. An assessment provided by an administrator for the purposes of paragraph 1B(a) or (c) must assess the following matters—

(a) the nature and extent of the current use of the benchmark,

(b) the availability of suitable alternatives to the benchmark, and

(c) how prepared users of the benchmark are for changes to, or the cessation of, the benchmark.

1D. For the purposes of paragraph 1B, “the consideration period”, in relation to a procedure or an update of a procedure, means the period of 60 days beginning with the day on which the procedure is published or the update of the procedure is given to the FCA (as appropriate) (“the relevant day”), subject to any extension under paragraph 1E.

1E. The FCA may extend the consideration period by giving a written notice to the administrator before its expiry but may not extend the period beyond the end of the period of six months beginning with the relevant day.]

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 nominate one or several alternative benchmarks that could be referenced to substitute the benchmarks no longer provided, indicating why such benchmarks would be suitable alternatives. The supervised entities shall, upon request, provide the [F6 FCA] with those plans and any updates and shall reflect them in the contractual relationship with clients.

Textual Amendments

F1 Words in Art. 28(1) omitted (1.7.2021) by virtue of Financial Services Act 2021 (c. 22), ss. 19(2)(a), 49(5); S.I. 2021/739, reg. 3(l)

F2 Words in Art. 28(1) substituted (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 19(2)(b), 49(5); S.I. 2021/739, reg. 3(l)

F3 Words in Art. 28(1) substituted (31.12.2020) by The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/657), regs. 1(2), 24(a) (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)

F4 Words in Art. 28(1) omitted (1.7.2021) by virtue of Financial Services Act 2021 (c. 22), ss. 19(2)(c), 49(5); S.I. 2021/739, reg. 3(l)

F5 Art. 28(1A)-(1E) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 19(3), 49(5); S.I. 2021/739, reg. 3(l)

F6 Word in Art. 28(2) substituted (31.12.2020) by The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/657), regs. 1(2), 24(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)