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)

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Regulation (EU) 2016/1011 of the European Parliament and of the Council, Article 23 is up to date with all changes known to be in force on or before 23 May 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.

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Changes and effects yet to be applied to Article 23:

Regulation revoked by 2023 c. 29 Sch. 1 Pt. 1
Art. 23 para. 4 replacement by EUR 2019/2175 Regulation (This amendment by the EU not applied to legislation.gov.uk because it is brought into force after IP completion day.)
Art. 23 para. 3 replacement by EUR 2019/2175 Regulation (This amendment by the EU not applied to legislation.gov.uk because it is brought into force after IP completion day.)

Changes and effects yet to be applied to the whole legislation item and associated provisions

Title 6 Ch. 4 addition by EUR 2019/2175 Regulation (This amendment by the EU not applied to legislation.gov.uk because it is brought into force after IP completion day.)
Art. 3.1(24) words omitted by S.I. 2019/657 reg. 5(10)(f) (This amendment not applied to legislation.gov.uk. Reg. 5(10)(f) omitted immediately before IP completion day by virtue of S.I. 2020/1385, regs. 1(4), 58(4))
Art. 51(1B)(a)(ii) words substituted in earlier amending provision S.I. 2019/657, reg. 42(2) by S.I. 2019/1212 reg. 20(2)(a) (This amendment not applied to legislation.gov.uk. Reg. 20(2) omitted (30.6.2020) by virtue of S.I. 2020/628, regs. 1(4), 16)
Art. 51(2)(b) word substituted by S.I. 2019/657 reg. 42(3)(b)(i) (This amendment not applied to legislation.gov.uk. Reg. 42(3) substituted immediately before IP completion day by S.I. 2020/628, regs. 1(3), 12(6)(b))
Art. 51(2)(b) words substituted by S.I. 2019/657 reg. 42(3)(b)(ii) (This amendment not applied to legislation.gov.uk. Reg. 42(3) substituted immediately before IP completion day by S.I. 2020/628, regs. 1(3), 12(6)(b))

Article 23U.K.Mandatory contribution to a critical benchmark

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[F25A.If a supervised contributor or supervised third country contributor gives a notification under Article 22A(6), the contributor may not cease contributing input data before the date specified in the notification as the date on which it intends to cease contributing, unless the FCA gives it written permission to do so.

5B.Paragraph 5A does not require a contributor to trade or commit to trade.]

6.[F3If the FCA gives the administrator of a critical benchmark a notice under Article 21(3B)(a) or Article 22B(3)(a) (benchmark unrepresentative or representativeness at risk), it has the power to—]

(a)require supervised entities [F4and supervised third country entities] selected in accordance with paragraph 7 of this Article, including entities that are not yet contributors to the relevant critical benchmark, to contribute input data to the administrator in accordance with the administrator's methodology, the code of conduct referred to in Article 15 and other rules. Such requirement shall be in place for an appropriate period of time not exceeding 12 months F5...

(b)extend the period of mandatory contribution by an appropriate period of time not exceeding 12 months, following a review under paragraph 9 of any measures adopted pursuant to point (a) of this paragraph;

(c)determine the form in which, and the time by which, any input data is to be contributed without imposing an obligation on supervised entities [F6and supervised third country entities] to either trade or commit to trade;

(d)require the administrator to change the methodology, the code of conduct referred to in Article 15 or other rules of the critical benchmark.

[F7The maximum period of mandatory contribution under points (a) and (b) of the first subparagraph shall not exceed five years.]

[F86A.The FCA may only exercise the powers under paragraph 6 so far as it considers it appropriate to do so for the purpose of maintaining, restoring or improving the representativeness of the benchmark.]

7.For the purposes of paragraph 6, supervised entities [F9and supervised third country entities] that are to be required to contribute input data shall be selected by the [F10FCA] on the basis of the size of the F11... entity's actual and potential participation in the market that the benchmark intends to measure.

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9.By the end of the period referred to in point (a) of the first subparagraph of paragraph 6, the [F13FCA] shall review the measures adopted under paragraph 6. It shall revoke any of them if it considers that:

(a)the contributors are likely to continue contributing input data for at least one year if the measure were revoked, which shall be evidenced by at least:

(i)

a written commitment by the contributors to the administrator and the [F14FCA] to continue contributing input data to the critical benchmark for at least one year if the measure were revoked;

(ii)

a written report by the administrator to the [F14FCA] providing evidence for its assessment that the critical benchmark's continued viability can be assured once mandatory contribution has been revoked;

(b)the provision of the benchmark is able to continue once the contributors mandated to contribute input data have ceased contributing;

(c)an acceptable substitute benchmark is available and users of the critical benchmark can switch to this substitute at minimal costs which shall be evidenced by at least a written report by the administrator detailing the means of transition to a substitute benchmark and the ability and costs to users of transitioning to this benchmark; or

(d)no appropriate alternative contributors can be identified and the cessation of contributions from the [F15contributors mandated to contribute input data] would weaken the benchmark to such an extent to require the cessation of the benchmark.

[F169A.In the case of an Article 23A benchmark, any measures adopted under paragraph 6 in relation to the benchmark are to be treated as being revoked when the designation of the benchmark under Article 23A takes effect.]

[F710.In the event that a critical benchmark is to be ceased to be provided, each supervised contributor [F17and supervised third country contributor] to that benchmark shall contribute input data for a period of time determined by the [F18FCA], but not [F19extending beyond the end of the period of five years beginning with the day on which the administrator notified the FCA of its intention to cease providing the benchmark under Article 21(1)].]

11.The administrator shall notify the [F20FCA] in the event that any contributors breach the requirements set out in paragraph 6 as soon as reasonably possible.

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Textual Amendments

F1Art. 23(1)-(4) omitted (1.7.2021) by virtue of Financial Services Act 2021 (c. 22), ss. 12(2), 49(5); S.I. 2021/739, reg. 3(e)

F2Art. 23(5A)(5B) substituted for Art. 23(5) (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 12(3), 49(5); S.I. 2021/739, reg. 3(e)

F3Words in Art. 23(6) substituted (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 12(4), 49(5); S.I. 2021/739, reg. 3(e)

F4Words in Art. 23(6)(a) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 12(5)(a), 49(5); S.I. 2021/739, reg. 3(e)

F5Words in Art. 23(6)(a) omitted (1.7.2021) by virtue of Financial Services Act 2021 (c. 22), ss. 12(5)(b), 49(5); S.I. 2021/739, reg. 3(e)

F6Words in Art. 23(6)(c) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 12(6), 49(5); S.I. 2021/739, reg. 3(e)

F7Substituted by Regulation (EU) 2019/2089 of the European Parliament and of the Council of 27 November 2019 amending Regulation (EU) 2016/1011 as regards EU Climate Transition Benchmarks, EU Paris-aligned Benchmarks and sustainability-related disclosures for benchmarks (Text with EEA relevance).

F8Art. 23(6A) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 12(7), 49(5); S.I. 2021/739, reg. 3(e)

F9Words in Art. 23(7) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 12(8)(a), 49(5); S.I. 2021/739, reg. 3(e)

F10Word in Art. 23(7) substituted (31.12.2020) by The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/657), regs. 1(2), 19(7) (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)