Financial Services Act 2021

16 Review of exercise of powers under Article 23D

In the Benchmarks Regulation, after Article 23D (inserted by section 15) insert—

“Article 23E Review of exercise of powers under Article 23D

1. Where the FCA has exercised a power under Article 23D(2) in relation to a benchmark, the FCA must, for each review period—

(a) review its exercise of its powers under Article 23D(2) in relation to that benchmark during the period, and

(b) publish a report setting out the outcome of the review.

2. For the purposes of paragraph 1, the review periods are—

(a) the period of two years beginning with the day on which the first notice under Article 23D(2) relating to the benchmark is published, and

(b) each subsequent period of two years, excluding the period in which the benchmark ceases to be provided and subsequent periods.

3. The FCA must publish a report under paragraph 1(b) as soon as reasonably practicable after the end of the review period.

4. Where the FCA, having exercised a power under Article 23D(2) in relation to a benchmark, exercises a power under Article 23D(2) again in relation to the benchmark, it must—

(a) carry out a review of the most recent previous exercise of that power in relation to that benchmark, and

(b) publish a report setting out the outcome of the review.

5. The FCA must take the action described in paragraph 4—

(a) before its subsequent exercise of a power under Article 23D(2), where that is reasonably practicable, or

(b) otherwise, as soon as reasonably practicable afterwards.

6. The FCA may fulfil the duty in paragraph 1 and satisfy paragraph 4 by means of the same review and report.

7. In a review under this Article, the FCA must—

(a) consider whether the exercise of the power has advanced, or is likely to advance, the objectives mentioned in Article 23D(3)(b), and

(b) have regard to the policy statement with respect to the exercise of its powers under Article 23D (see Article 23F).

8. A report published under this Article must be published in the way appearing to the FCA to be best calculated to bring it to the attention of the public.

9. The FCA—

(a) must give a copy of a report of a review under this Article to the Treasury before publishing it, and

(b) may charge a reasonable fee for providing a person with a copy of a report published in accordance with this Article.”