Benchmark Regulation

Sources of Regulation

Legislation currently in force as well as draft delegated regulations and RTS are set out below.

Level 1

Benchmark Regulation
 European Commission consultation on the Benchmark Regulation (October 2019)
Regulation (EU) 2016/1011 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
Sustainable finance – Regulation (EU) 2019/2089 amending Benchmark Regulation in relation to low-carbon benchmarks and positive carbon impact benchmarks and amending transitional periods for third-country and critical benchmarks
European System of Financial Supervision – Regulation (EU) 2019/2175 amending the Benchmark Regulation in relation to ESMA's direct supervisory powers over critical benchmark administrators

Level 2 measures: delegated regulations in force

Delegated Acts
  COMMISSION DELEGATED REGULATIONS
EU delegated regulation 2021/168 amending the Benchmark Regulation on the statutory replacement rate mechanism (February 2021)

Commission Delegated Regulation (EU) 2018/1637

Regarding regulatory technical standards for the procedures and characteristics of the oversight function- published in the Official Journal on 5 November 2018

Commission Delegated Regulation (EU) 2018/1638

Regarding regulatory technical standards specifying further how to ensure that input data is appropriate and verifiable, and the internal oversight and verification procedures of a contributor that the administrator of a critical or significant benchmark has to ensure are in place where the input data is contributed from a front office function - published in the Official Journal on 5 November 2018

Commission Delegated Regulation (EU) 2018/1639

Regarding regulatory technical standards specifying further the elements of the code of conduct to be developed by administrators of benchmarks that are based on input data from contributors – published in the Official Journal on 5 November 2018

Commission Delegated Regulation (EU) 2018/1640

Regarding regulatory technical standards specifying further the governance and control requirements for supervised contributors - published in the Official Journal on 5 November 2018

Commission Delegated Regulation (EU) 2018/1641

Regarding regulatory technical standards specifying further the information to be provided by administrators of critical or significant benchmarks on the methodology used to determine the benchmark, the internal review and approval of the methodology and on the procedures for making material changes in the methodology- published in the Official Journal on 5 November 2018

Commission Delegated Regulation (EU) 2018/1642

Regarding regulatory technical standards specifying further the criteria to be taken into account by competent authorities when assessing whether administrators of significant benchmarks should apply certain requirements- published in the Official Journal on 5 November 2018

Commission Delegated Regulation (EU) 2018/1643

Regarding regulatory technical standards specifying further the contents of, and cases where updates are required to, the benchmark statement to be published by the administrator of a benchmark - published in the Official Journal on 5 November 2018

Commission Delegated Regulation (EU) 2018/1644

Regarding regulatory technical standards determining the minimum content of cooperation arrangements with competent authorities of third countries whose legal framework and supervisory practices have been recognised as equivalent- published in the Official Journal on 5 November 2018

Commission Delegated Regulation (EU) 2018/1645

Regarding regulatory technical standards for the form and content of the application for recognition with the competent authority of the Member State of reference and of presentation of information in the notification to ESMA- published in the Official Journal on 5 November 2018

Commission Delegated Regulation (EU) 2018/1646

Regarding regulatory technical standards for the information to be provided in an application for authorisation and in an application for registration - published in the Official Journal on 5 November 2018

Commission Delegated Regulation (EU) 2018/64

Specifying how the criteria of Article 20(1)(c)(iii) are to be applied for assessing whether certain events would result in significant and adverse impact - published in the Official Journal on 17 January 2018

Commission Delegated Regulation (EU) 2018/65

Specifying technical elements of the definitions laid down in Article 3(1) of the Regulation - published in the Official Journal on 17 January 2018

Commission Delegated Regulation (EU) 2018/66

Specifying how the nominal amount of financial instruments other than derivatives, the notional amount of derivatives and the net asset value of investment funds are to be assessed - published in the Official Journal on 17 January 2018

Commission Delegated Regulation (EU) 2018/67

Regarding the establishment of the conditions to assess the impact resulting from the cessation of or change to existing benchmarks - published in the Official Journal on 17 January 2018

COMMISSION IMPLEMENTING REGULATIONS

Commission Implementing Regulation (EU) 2019/1274

On the equivalence of the legal and supervisory framework applicable to benchmarks in Australia in accordance with the Benchmark Regulation - published in the Official Journal on 30 July 2019

Commission Implementing Regulation (EU) 2019/1275

On the equivalence of the legal and supervisory framework applicable to benchmarks in Singapore in accordance with the Benchmark Regulation - published in the Official Journal on 30 July 2019

Commission Implementing Regulation (EU) 2019/482

Amending Implementing Regulation (EU) 2016/1368 establishing a list of critical benchmarks used in financial markets pursuant to the Benchmark Regulation - published in the Official Journal on 25 March 2019

Commission Implementing Regulation (EU) 2018/1105 

Establishing procedures and forms for the provision of information by competent authorities to ESMA – published in the Official Journal on 9 August 2018

Commission Implementing Regulation (EU) 2018/1106

Templates for the compliance statement to be published and maintained by administrators of significant and non-significant benchmarks - published in the Official Journal on 9 August 2018

Commission Implementing Regulation (EU) 2016/1368

Establishing a list of critical benchmarks used in financial markets pursuant to the Benchmark Regulation - published in the Official Journal on 12 August 2016

Guidance and Q&A

guidance and Q&A
ESMA Q&As (last updated July 2021)

ESMA final report on guidelines on non-significant benchmarks 

Published on 20 December 2018, the report provides guidance on the following areas:

  1. specifying the elements referred to in Article 5(5) i.e. in relation to RTS on oversight function requirements (Section 1);
  2. addressing administrators of non-significant benchmarks on specifying the elements referred to in Article 11(6) i.e. in relation to RTS on input data (Section 2);
  3. specifying further the elements referred to in Article 13(3) (i.e. in relation to RTS on transparency of methodology) (Section 3); and
  4. addressing administrators of non-significant benchmarks on specifying the elements referred to RTS issued under Article 16(5) (Section 4).

ESG: Level 2 and level 3 legislation and guidelines

Technical Standard/Regulatory Standard/GuidelineDetails
Subject matter and scope
Commission Delegated Regulation (EU) 2020/1816 regarding the explanation in the benchmark statement of how ESG factors are reflected in each benchmark provided and publishedPublished in the Official Journal of the European Union on 3 December 2020 and entered into application on 23 December 2020.
Commission Delegated Regulation (EU) 2020/1817 on the minimum content of the explanation on how ESG are reflected in the benchmark methodology
Published in the Official Journal of the European Union on 3 December 2020 and entered into application on 23 December 2020.
Commission Delegated Regulation (EU) 2020/1818 regarding minimum standards for EU Climate Transition Benchmarks and EU Paris-aligned Benchmarks Published in the Official Journal of the EU on 3 December 2020 and entered into application on 23 December 2020.

ESFS changes to the Benchmark Regulation: Level 2 legislation

delegated actdetails
Commission Delegated Regulation (EU) 2021/1351 on RTS specifying systems and controls for the identification and reporting of any conduct that may involve manipulation or attempted manipulation of a benchmark 
Sets out the types of controls that an administrator should have in place to ensure integrity of data and to detect manipulation. Comes into force in September 2021.
Commission Delegated Regulation (EU) 2021/1350 on RTS specifying requirements to ensure that an administrator’s governance arrangements are sufficiently robust 

Specifies content of an administrator’s governance arrangements; and sets out information on allocation of responsibilities. Comes into force in September 2021.
Commission Delegated Regulation (EU) 2021/1352 supplementing the BMR on RTS specifying the conditions to ensure that the benchmark methodology complies with the quality requirement (robust and reliable) 
Specifies conditions to ensure that benchmark methodology is: rigorous, continuous and
capable of validation; resilient and can be calculated in the widest set of possible circumstances; and is traceable and verifiable. Comes into force in September 2021. 
Commission Delegated Regulation (EU) 2021/1349 supplementing the BMR with regard to RTS specifying the criteria for the competent authorities' compliance assessment regarding the mandatory administration of a critical benchmark
Sets out criteria that competent authority will base assessment of how a critical benchmark is to be transitioned to a new administrator; and assessment for determining when a critical benchmark should cease to be provided. Comes into force in September 2021.
Commission Delegated Regulation (EU) 2021/1348 supplementing the BMR with regard to RTS on the criteria for changes to the compliance statement of non-significant benchmarks 
Sets out criteria that a competent authority uses to require changes to a non-significant benchmark compliance statement where statement does not clearly state why it is appropriate for the relevant administrator not to comply with one or more of the requirements referred to in Article 26(1) of BMR. Comes into force in September 2021.

ESMA No-Action Letter to National Competent Authorities on sustainability-related disclosures for benchmarks (April 2020)

ESMA Opinion to the European Commission on appropriate action in respect of sustainability-related disclosures for benchmarks (April 2020)

IOSCO Statement on Matters to Consider in the Use of Financial Benchmarks (January 2018)

IOSCO's final Principles on Financial Benchmarks (July 2013)

UK 

FCA Benchmarks Regulation (Amendment) Instrument 2018 (FCA 2018/29)

FCA Handbook Notice No. 56

The Financial Services and Markets Act 2000 (Benchmarks) (Amendment) Regulations 2018

The Financial Services and Markets Act 2000 (Benchmarks) Regulations 2018

FCA Consultation Paper:  EU Benchmarks Regulation Implementation (DEPP and EG) February 2018 

FCA Policy Statement on Handbook changes to reflect the application of the EU Benchmarks Regulation (PS17/28) (December 2017)

FCA Consultation Paper on Handbook Changes to reflect the application of the Benchmarks Regulation (CP17/17) (June 2017)

Brexit

FCA: Consultation paper: Benchmarks Regulation: how we propose to use our powers over use of critical benchmarks (CP21/15) (May 2021)

Financial Services Act 2021 (April 2021)

FCA: Benchmarks Regulation and proposed amendments under the Financial Services Bill (March 2021)

FCA Statement of Policy on the designation of benchmarks under Article 23A BMR (March 2021)

FCA Feedback Statement: the exercise of the FCA’s powers under Article 23A BMR (March 2021)

FCA Statement of Policy on the exercise of the FCA’s powers under Article 23D BMR (March 2021)

FCA Feedback Statement: the exercise of the FCA’s powers under Article 23D BMR (March 2021)

FCA Consultation on proposed policy with respect to the designation of benchmarks under new Article 23A (November 2020)

FCA Consultation on proposed policy with respect to the exercise of the FCA’s powers under new Article 23D (November 2020)

FCA Benchmarks Regulation and proposed amendments under the Financial Services Bill (November 2020)

Benchmarks Regulation Equivalence Directions 2020

ESMA Statement on impact of Brexit on Benchmark Regulation (October 2020)

HM Treasury: Amendments to the Benchmarks Regulation to support LIBOR transition (October 2020)

The Financial Services (Miscellaneous Amendments) (EU Exit) Regulations 2020 (SI 2020/628)

The Financial Services (Electronic Money, Payment Services and Miscellaneous Amendments) (EU Exit) Regulations 2019 (SI 2019/1212)

The Equivalence Determinations for Financial Services and Miscellaneous Provisions (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/541)

The Equivalence Determinations for Financial Services (Amendment etc.) (EU Exit) Regulations 2020 (SI 2020/1055)

Financial Regulators' Powers (Technical Standards etc.) and Markets in Financial Instruments (Amendment) (EU Exit) Regulations (SI 2019/576)

The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019

The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) (No. 2) Regulations 2019 (SI 2019/1416)

FMLC paper on issues of legal uncertainty regarding on-shored Benchmark Regulation (October 2019)

FCA statement on various MiFID obligations and benchmarks regulation if the UK leaves the EU without an implementation period (March 2019)

The Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (March 2019)

FCA Technical Standards (Benchmark Regulation) (EU Exit) Instrument 2019 (March 2019)

ESMA Statement: Impact of Brexit on MiFID II/MiFIR and the Benchmark Regulation (March 2019)

FCA: Brexit Policy Statement: Feedback on CP18/28, CP18/29, CP18/34, CP18/36 and CP19/2 (PS19/5) (February 2019)

FCA: Brexit: Proposed changes to the Handbook and Binding Technical Standards – second consultation (CP18/36) (November 2018)