Changes from adopted text to adopted text

Removed(a) market making in support of client activity related to transactions executed the effective date of the prohibition;

Removed(b) transactions or other activities that reduce or hedge the supervised entity's or any client of the supervised entity's exposure to the prohibited benchmark;

Removed(c) novations of transactions;

Removed(d) transactions executed for the purposes of participation in a central counterparty auction procedure in the case of a member default, including transactions to hedge the resulting exposure;

Removed(e) interpolation or other use provided for in contractual fallback arrangements in connection with the prohibited benchmark.’;

Removed(c) ▌new paragraphs 1b, 1ba, 1bb and 1bc are inserted:

Removed‘1b. A supervised entity that uses a benchmark in existing financial contracts or to measure the performance of investment funds 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 providing clients with a reasoned explanation for not being able to do so.’

Removed1ba. A supervised entity may use a benchmark claiming, in its legal or marketing documentation, or denomination, to take ESG factors into account in its methodology, only where its administrator discloses the information referred to in Article 13(1), point d, and in Article 27(2a). All methodology disclosure requirements shall seek coherence with Article 10 of Regulation EU 2019/2088.

RemovedThis paragraph shall apply to both EU and non-EU benchmarks.

Removed(ca) Paragraph 2 is amended as follows:

Removed2. Where the object of a prospectus to be published under Directive 2003/71/EC or Directive 2009/65/EC is transferable securities or other investment products that reference a critical benchmark, a significant benchmark, a commodity benchmark subject to Annex II, an EU Climate Transition Benchmark, or an EU Paris-aligned Benchmark, the issuer, offeror, or person asking for admission to trade on a regulated market shall ensure that when a public notice on the benchmark used is included in the register referred to in Article 36 of this Regulation, within 9 months following the publication of the public notice, the prospectus also includes this information in a clear and prominent manner.

Removed(cb) a new paragraph 2a is inserted:

Removed2a. Administrators of benchmarks used in the EU shall endeavour to request a globally agreed identifier code for each of the benchmarks they provide for use in the Union.’;

Removed(15) Article 32 is amended as follows:

Removed(a) paragraph 1 is deleted;

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

Removed‘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.

RemovedWhen 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:

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

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

RemovedWhere, 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.

Removed3. An administrator located in a third country intending to obtain recognition shall have a legal representative. The legal representative shall be a ▌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▌ be accountable to ESMA. ESMA may impose a supervisory measure in accordance with Article 48e on the legal representative and the administrator for one of the infringements listed in point (a) of Article 42(1) or in relation to any failure to cooperate or comply in an investigation or with an inspection or request covered by Section 1 of Chapter 4.’;

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

Removed‘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.

RemovedWithin 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.’;

Removed(15a) in Article 33(1), the introductory wording is amended as follows:

Removed‘1. An administrator located in the Union and authorised or registered in accordance with Article 34, with a clear and well-defined role under the control or accountability framework of a third country administrator, which is able to monitor effectively the provision of a benchmark, may apply to ESMA to endorse a benchmark or a family of benchmarks provided in a third country for their use in the Union, provided that all of the following conditions are fulfilled:

Removed(15b) Article 33, paragraph 3 is amended as follows:

Removed3. Within 90 working days of receipt of the application for endorsement referred to in paragraph 1, ESMA shall examine the application and adopt a decision either to authorise the endorsement or to refuse it.

Removed(15c) Article 33, paragraph 6 is amended as follows:

Removed6. Where the competent authority of the endorsing administrator has well-founded reasons to consider that the conditions laid down under paragraph 1 of this Article are no longer fulfilled, it shall have the power to require the endorsing administrator to cease the endorsement and shall inform ESMA thereof. Article 28 shall apply in case of cessation of the endorsement.

Removed(16) Article 34 is amended as follows,

Removed(a) paragraph 1 is replaced by the following:

Removed‘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 or ESMA in order to receive:

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

Removed(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.’;

Removed(aa) Article 34, paragraph 1a is amended as follows:

Removed1a. Where one or more of the indices provided by the person referred to in paragraph 1 would qualify as critical benchmarks as referred to in Article 20(1), points (a) and (c), or as significant benchmarks as referred to Article 24(2), (5) and (6), or if the person envisages endorsing benchmarks as referred to in Article 33, the application shall be addressed to ESMA.

Removed(b) paragraph 3 is replaced by the following:

Removed‘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 in 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.’;

Removed(16a) in Article 36(1), points (a) to (d), are replaced by the following:

Removed‘1. ESMA shall establish and maintain a public register that contains the following information:

Removed(a) the identities, including, when available, the Legal Entity Identifier (LEI), of the administrators authorised or registered pursuant to Article 34 and the competent authorities responsible for the supervision thereof;

Removed(b) the identities, including, when available, the LEI, of administrators that comply with the conditions laid down in Article 30(1), the list of benchmarks, including, when available, their International Securities Identification Numbers (ISINs), referred to in point (c) of Article 30(1) and the third country competent authorities responsible for the supervision thereof;

Removed(c) the identities, including, when available, the LEI, of the administrators that acquired recognition in accordance with Article 32, the list of benchmarks, including, when available, their ISINs, referred to in Article 32(7) and, where applicable, the third country competent authorities responsible for the supervision thereof;

Removed(d) the benchmarks that are endorsed in accordance with the procedure laid down in Article 33, the identities of their administrators, and the identities of the endorsing administrators or endorsing supervised entities.;

Removed(17) in Article 36(1):

Removed(a) points (e) to (j) are amended:

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

Removed(f) the benchmarks, including, when available, their ISINs, subject to designations by competent authorities notified to ESMA pursuant to Article 24(4), and the hyperlinks to such designations;

Removed(g) the benchmarks, including, when available, their ISINs, subject to designations by ESMA, and the hyperlinks to such designations;

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

Removed(i) the list of EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks, including, when available, their ISINs, available for use in the Union;

Removed(j) the list of critical benchmarks, including, when available, their ISINs.’;

Removed(b) point (ja) is added:

Removed‘(ja) the list of commodity benchmarks subject to Annex II, including, when available, their ISINs, available for use in the Union.;

Removed(17a) Article 40, paragraph 1 is amended as follows:

Removed‘1. For the purposes of this Regulation, ESMA shall be the competent authority for:

Removed(a) administrators of critical benchmarks as referred to in Article 20(1), points (a) and (c);

Removed(b) administrators of the benchmarks referred to in Article 32;